Materials: all data, information, logos, designs, graphics, text, documents, audio, video or other materials, including TVC, incorporated in or posted on our server.
Sender: any organisation performing the finalisation of TVC (including a department within an Advertising Agency or Production Company). For the purposes of this document Post House is the organisation in charge of uploading the TVC to IMD’s central server.
Security Codes: the username, password and any other security measures IMD provides, or allows to be set, to enable you to access our services and/or to protect the confidentiality of the Materials.
Services: TVC delivery to TV Broadcasters service and digital media asset
management solutions as set out in Schedule 1.
TV Broadcasters: any organisation such as TV Channels, Radio Channels, Internet Channels or other media connected to the IMD network to receive electronically TVC.
TV Commercial (TVC): any video or audio product less than 60 seconds long made for broadcast on TV Channels, Radio Channels, Internet Channels or other media.
User: your employees or agents who are enabled via a Security Code.
1 Security Codes
1.1 IMD will allow your Users to set Security Codes to access our services.
1.2 You are responsible for any use of the Security Codes, and you must:
(a) not disclose any Security Code to an unauthorised person;
(b) only use the Security Codes in accordance with any instructions or limitations set out in this Agreement or notified to you by us from time to time.
2 Our Obligations and Warranties
2.1 IMD will:
(a) use appropriately qualified staff to perform the Services and carry out our obligations with reasonable care and skill;
(b) take every reasonable precaution to ensure that the Services are reliable, adequate, and secure. IMD is not liable if the service is unavailable due to malfunction, upgrade and maintenance or events beyond our control. IMD will give you notice as reasonably possible of the likely occurrence of any of the previous events where IMD is aware of any of these events prior to them occurring. These warranties are in lieu of all representations, warranties or conditions implied by statute, at law, by trade, by custom or otherwise, which are expressly excluded to the fullest extent permitted by law
2.2 Subject to access through the use of Security Codes, IMD will also take every reasonable precaution to ensure that the confidentiality of the Materials is protected, except if they:
(a) need to be disclosed to give effect to this Agreement;
(b) are disclosed to other IMD clients, including (without limitation) where you have authorised that disclosure;
(c) become generally known by the public other than due to a breach of this clause; or
(d) are legally required to be disclosed.
2.3 IMD will keep the digital copy of the TVC and related information stored on IMD’s central servers and share with other authorised organisations such as Advertiser and Client.
3 Intellectual Property
3.1 IMD owns all intellectual property rights in IMD. You acknowledge that neither you nor anyone that you are responsible for has, or will acquire, any intellectual property rights in IMD and that this Agreement does not transfer any rights to you.
3.2 From time to time, intellectual property rights may arise, or be created, in the course of carrying out the Services. IMD will be the only owner of these rights. You agree to do anything IMD reasonably requests to give effect to that ownership.
3.3 IMD owns the digital copy of the TVC stored in IMD’s central server. However, the foregoing does not affect the intellectual property in any TVC.
4 Your Obligations and Warranties
4.1 You warrant that:
(a) the Materials supplied by you will not contravene any law and will not infringe the intellectual property or any other rights of any organisation or person;
(b) you have obtained all necessary consents from third parties to deliver the Materials to us and enable us to perform the Services;
(c) you will not use the Services in any way which is illegal, or could damage our network or that of any other operator; and
(d) any materials that you deliver to us, including any TVC, will conform to TV Broadcasters and IMD technical specifications.
(e) you will not use the Services on behalf, whether directly or indirectly, of any competitors of IMD
4.2 You indemnify us against any and all loss, liability, damage and expense arising from any and all suits, claims, causes of action or proceedings brought against us by reason of, in connection with, or arising from any breach of this Agreement whether brought in tort, contract, equity or otherwise, or any wilful, unlawful or negligent act or omission.
4.3 If you fail to pay the Fees to us in accordance with this Agreement, you will be in default and will on demand by us pay to us default interest on the amount due from the due date of payment until the date of actual payment at a rate equal to 3% above the current overdraft rate that IMD has with principal banker, in addition to you remaining liable for the full amount
5 Limitation of Liability
5.1 Our liability is limited to direct losses, damages or injuries which arise directly out of any breach of our obligations under this Agreement up to a maximum amount equal to the Fees paid by you to us for the Services, IMD will not be liable to any other person in any way for any claim or dispute relating to this Agreement, and IMD will have no further liability or
responsibility to you for any injury, loss (including, without limitation, loss of profits, data or business opportunity) or damage, whether direct, indirect or consequential, or whether arising in contract, tort, equity or otherwise arising between the parties.
6.1 Either party may terminate this Agreement immediately by notice in writing if the other party:
(a) goes into voluntary liquidation or is placed in liquidation by a court having jurisdiction;
(b) has a receiver appointed in respect of any of its undertakings; or
(c) has a judgment made against any of its assets, which judgment remains unsatisfied for not less than 10 days.
6.2 If either party breaches any material provision of this Agreement the other party may give written notice to the defaulting party specifying the breach and requiring it to be remedied within 30 days of receipt of the said notice.
6.3 If the defaulting party fails to remedy a breach (capable of being remedied) within the time limit set out in the notice or if the breach is a material breach incapable of being remedied, then without further notice and without prejudice to any other rights or remedies available to the non-defaulting party at law, in equity, or on any other basis the non-defaulting party may terminate this Agreement. For the purposes of this clause the Payment Terms are material provisions of this
7 Consequences of Termination or Expiry
7.1 On termination of this Agreement for any reason:
(a) you will promptly pay to us any outstanding amounts; and
(b) all the provisions of this Agreement that are intended to continue after termination of this Agreement will continue in full force and effect.
7.2 On termination of this Agreement for any reason your Security Codes will expire.
8 Suspension of Services
8.1 IMD may change, cease providing or suspend all or any part of the Services if:
(a) you are in breach of this Agreement; or
(b) the Service is no longer viable or cannot be provided for any technical or legal reasons.
9.1 IMD may:
(a) advise other clients and potential clients that you use the Services; and
(b) refer to your use of the Services in our marketing materials.
10 Force Majeure
10.1 Notwithstanding any other provision of this Agreement, non-performance by either party of any of its obligations (other than to pay money) under this Agreement will be excused, without liability for non-performance, during the time and to the extent that this is prevented by an event or circumstance beyond the reasonable control of that party (Force Majeure).
10.2 The party claiming the benefit of this clause will promptly give written notice to the other party specifying the cause and extent of its inability to perform any of its obligations under this Agreement and the likely duration of such non performance and will take all reasonable steps to remedy or reduce the Force Majeure.
11 Dispute Resolution
The parties will use all reasonable endeavours to resolve any dispute between them. If the parties cannot agree the dispute will be determined in accordance with the Arbitration Act.
12 Entire Agreement
This Agreement constitutes the entire Agreement between the parties relating to the supply of the Services and replaces all earlier negotiations, representations, warranties, understandings and Agreements between the parties (whether oral or written) relating to the Services.
No exercise or failure to exercise or delay in exercising any right or remedy (including those under this Agreement) by a party will constitute a waiver by that party of that or any other right or remedy available to it.
14 Partial Invalidity
If any part of this Agreement is held by a court of competent jurisdiction to be unenforceable the validity of the remainder of this Agreement will not be affected.
Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and delivered by hand or by prepaid mail to the addresses set out on the front page of this Agreement and will be deemed to have been received at the time when actually delivered if delivered by hand, or 3 days after posting if sent by mail.
16 Assignment and Subcontracting
You will not assign any or all of your rights under this Agreement without our prior written consent.
17 Amendments to Agreement
No amendment to this Agreement will be effective unless it is in writing and signed by both parties.
In the construction of this Agreement, unless the context requires otherwise:
(a) References to monetary amounts are to New Zealand currency, unless specified otherwise;
(b) Headings appear as a matter of convenience and will not affect the construction of this Agreement;
(c) Including means including without limitation to the generality of the surrounding words;
(d) Words importing the singular or plural number include the plural and singular number respectively; and
(e) A reference to an enactment is a reference to that enactment as amended, or to any enactment that has been substituted for that enactment.
19 Applicable Law
This Agreement will be construed in accordance with the laws of the country indicated on the front page of the written contract. All parties submit to the exclusive jurisdiction of the Courts of this country. In the case of use of the IMD service via the Internet without a printed contract, this agreement will be construed in accordance with Singaporean law. All parties submit to the exclusive jurisdiction of the Courts of Singapore.