In this agreement:

• construction may not be adverse to a party only because that party was responsible for preparing it;
• headings are for convenience only and do not affect its interpretation;
• references to a person, or words denoting a person, includes:
  • a company, statutory corporation, partnership, joint venture and association; and
  • that person’s legal personal representatives, executors, administrators, successors and permitted assigns;
• every obligation entered into by two or more parties binds them jointly and each of them severally;
• where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
• “includes”, “including” and similar expressions are not words of limitation;
• all monetary amounts are in New Zealand dollars; and
• reference to any agreement or other document annexed to or referred to in this agreement includes:
  • any amendments to this agreement or any document; and
  • any documents in addition to or in substitution for this agreement which have been approved in writing by the parties.

The Licensor licenses the Licensee to use the Trade marks in the Territory set out in item 2 of Schedule 1 during the continuance of this agreement:

• on and in relation to the Goods in item 3 of Schedule 1; and
• in relation to the provision of the Services in item 4 of Schedule 1.

The Licensor will pay any renewal fees relating to the New Zealand registration of any of the Trade marks that fall due during the term of this agreement.

• In consideration of the Licence granted, the Licensee must pay the Licensor the licence fees described in item 5 of Schedule 1, with payment of any amount due to be made as described in item 6 of Schedule 1.
• All payments referred to in clause 3 are GST exclusive.

• The Licence granted to the Licensee by this agreement is Non Exclusive
• The Licensee has no authority to grant sub-licences as to:
  • the use of the Trade marks for the Manufacture of the Goods; or
  • the production, provision, supply or delivery of the Services,

except when the Licensor has given its written consent to the grant of sub-licences by the Licensee

• If requested by the Licensor, as soon as is reasonably practicable, the Licensee must submit to the Licensor for inspection:
  • samples of the Goods and Services; and
  • copies of all materials bearing the Trade marks.
• The Licensee must:
  • permit the Licensor’s accountant or auditor to inspect and verify all records required to be maintained by the Licensee from time to time during ordinary business hours;
  • give all assistance necessary to the Licensor’s accountant or auditor to carry out their inspection and verification; and
  • permit the Licensor’s accountant or auditor to take copies of the records required to be maintained.
• The Licensee must permit any officer or agent of the Licensor, who is authorised in writing for that purpose, to enter any of the Licensee’s premises during normal business hours by appointment in order to inspect:
  • the circumstances of Manufacture, production, provision, supply or delivery of the Goods and Services; and
  • the use or application of the Trade marks.
• The officer or agent is entitled to take samples and to carry out tests for the purpose of examination and testing for compliance with the terms of this agreement.

• The Licensee must maintain in sufficient detail for a period of 7 years, separate and accurate records and accounts that are prepared in compliance with New Zealand accounting standards that identify:
  • the quantity of Goods manufactured and sold;
  • the quantity of Services supplied;
  • the Net Sales Price at which Goods and Services are sold or licensed; and
  • any other information reasonably required by the Licensor relevant to:
    • the Goods manufactured and sold;
    • the Services provided: and
    • the determination of the Net Sales Price.
  • From time to time, the Licensee must:
    • permit an accountant or auditor of the Licensor to inspect and verify all or any records required to be maintained by the Licensee during ordinary business hours;
    • give all assistance necessary to the Licensor’s accountant or auditor to carry out such inspection and verification; and
    • permit Licensor’s accountant or auditor to take copies of any such records.

• The Licensee must not:
  • describe itself or hold itself out as the agent of the Licensor in any manner. The Licensor cannot be or become liable in respect of the Manufacture, production, provision or supply of the Goods and Services or any other transactions relating to the Goods and Services entered into by the Licensee with any other party;
  • disclose or make known any confidential information relating to the Manufacture, production, provision or supply of the Goods and Services at any time during the continuance or after termination of this agreement;
  • grant any right, licence or authority to any third party, whether at common law or otherwise, to use the Trade marks in relation to any Goods or Services; and
  • represent the Trade marks or use the Licensor’s name without submitting to the Licensor the proposed marked Goods and Services for its prior consent.

• The Licensee acknowledges the Licensor’s title to each Trade mark in New Zealand and the validity of the Licensor as the owner of the Trade mark(s) and undertakes not to take any action which would or might:
  • invalidate or put in dispute the Licensor’s title;
  • oppose any application for registration of the Trade marks or invalidate any registration of the Trade marks in due course;
  • support an application to remove any Trade mark as a registered trade mark;
  • cause the Commissioner of Trade Marks to require a disclaimer of a monopoly in any Trade mark or part of it; or
  • assist any other person directly or indirectly in any of the acts described in subclauses (i) to (iv) (inclusive).

• Unless otherwise agreed in writing, the Licensee must, whenever any of the Trade marks are used, accompany the use with words indicating that the Trade marks are the Licensor’s registered Trade marks.
• The Licensee will not use any other Trade mark or logo in its business which is:
  • similar to;
  • substantially similar to; or
  • so nearly resembles any of the Trade marks,

as to be likely to cause deception or confusion among the public.

• The Licensee must use its best endeavours to preserve the value and validity of the Trade marks. In particular, the Licensee must:
  • endeavour to create, promote and retain the goodwill in its business relating to the Manufacture, production, provision or supply of the Goods and Services;
  • use each of the Trade marks in the manner described in any style guide provided by the Licensor;
  • give prominence to the Trade marks in all advertising, displays and literature undertaken, published by or on behalf of the Licensee on or in relation to the Goods and Services; and
  • not use the Trade marks accompanied by words describing the Goods or Services unless the Trade marks are distinguished from the descriptive surrounding and adjacent text.

• This agreement may be terminated by the Licensor on the happening of any of the following events:
  • the Licensee refuses or neglects to pay promptly any sum payable under this agreement, including:
    • moneys payable for sales of the Goods; and
    • fees payable on provision of the Services,

under the Licensor’s tax invoices on their due dates;

• the Licensee fails to maintain quality control in respect of the Goods and Services in accordance with the Licensor’s:
  • standards of quality production and processing; or
  • directions;
• on the happening of an Insolvency Event in relation to the Licensee; or
• the Licensee fails to observe and perform any other provisions of this agreement:
  • following the Licensor’s provision of a written notice to the Licensee requiring rectification of the Licensee’s failure to observe and perform any provisions of this agreement; and
  • such that, the Licensee fails to rectify and make good their failure within 21 days.

• This agreement may be terminated by the Licensee if the Licensor:
  • fails to observe and perform any provision of this agreement; and
  • fails to rectify and make good such failure within [number] days after receiving written notice requiring the failure to be rectified and made good.
• Waiver by either party of a breach of any provision of this agreement does not constitute the waiver of any subsequent breach of the provision or waiver of the provision itself.

On termination of this agreement, the Licensee must:

• stop all use of the Trade marks;
• deliver up to the Licensor any advertising, display aids or literature produced by or on behalf of the Licensee;
• deliver up to the Licensor any of the Goods containing the Trade marks that remain in the possession of the Licensee; and
• deliver up to the Licensor any other documents or objects in the Licensee’s possession which relate to the Trade mark.

• The Licensee must do all things reasonably necessary for the protection of the Trade marks against deregistration or infringement.
• If:
  • the Licensee receives notice of any infringement or threatened infringement of any of the Trade marks or any common law passing off by reasons of imitation of get up or otherwise; or
  • any third party alleges or claims that any of the Trade marks are liable to cause deception or confusion to the public,

the Licensee must give particulars, all information and assistance to the Licensor in the event the Licensor commences or defends proceedings in relation to the claims or infringements in subclauses (i) and (ii). Any such proceedings will be under the control and expense of the Licensor.

• If the Licensor does not commence or defend proceedings in relation to claims or infringements of the Trade marks within 2 months of receiving notification of them from the Licensee:
  • the Licensee may institute proceedings in its own name as if it was the Licensor (joining the Licensor as a defendant); and
  • the Licensor is not liable for any costs unless it takes part in the proceedings.

The Licensor warrants that:

• it has absolute title to the Trade marks; and
• use of the Trade marks in connection with the Goods and Services will not infringe the rights of any person.

• The Licensor will, at all times, indemnify and keep indemnified the Licensee, its Representatives and any related body corporate against any claims, liabilities, damages, losses, costs and expenses (including legal costs and expenses) arising out of, relating to or is a consequence of:
  • any breach or alleged breach of any term, condition or warranty by the Licensor; and
  • any claims in relation to infringement of any rights of any third party arising in connection with the use of the Trade marks by or under the authority of the Licensee, including any sub-licensee of the Licensee.
• The Licensee will, at all times, indemnify and keep indemnified the Licensor, its Representatives and any related body corporate against any and all claims, liabilities, damages, losses, costs and expenses (including legal costs and expenses) arising out of, relating to any breach or alleged breach of any term, condition or warranty by the Licensee.

If GST is payable in respect of payments made by the Licensee to the Licensor under this agreement, the amounts payable will be increased by the amount of the GST, provided that the Licensor:

• is registered for the purposes of GST; and
• provides the Licensee with a GST Invoice.

• If any dispute arises out of or in connection with this agreement, either party may submit that dispute to mediation in accordance with the mediation rules of LEADR.
• If a dispute arises:
  • a party may give the other party a notice specifying the dispute; and
  • within 5 business days after the notice is given, each party must nominate in writing a representative to settle the dispute on its behalf.
• Within 7 business days after the notice is given, the parties must confer to resolve the dispute or to decide the method of resolving the dispute. Each party must use its best efforts to resolve the dispute.
• Unless the parties otherwise agree, the dispute must be referred to mediation if not resolved within 14 business days after the notice is given.
• The parties must appoint a mediator within 21 business days after the notice is given. If the parties fail to agree on a mediator, the mediator must be nominated by the: chief executive officer of LEADR.
• Unless otherwise agreed by the parties in writing, the mediator’s decision is not binding on the parties. The role of the mediator is to assist in negotiating a resolution to the dispute.
• If the dispute is not resolved within 21 business days after the mediator’s appointment, the mediation ends.
• The dispute resolution process does not affect either party’s obligations under this agreement.
• Neither party may commence court proceedings, in any jurisdiction, until the mediation ends. This does not affect either party’s right to seek urgent injunctive or declaratory relief.
• Each party is to pay its own costs of the dispute resolution process.
• The parties are to pay, in equal shares, the mediator’s costs and any other third-party costs required by the mediator.
• If a dispute arises in relation to this agreement, each party must keep confidential:
  • all information or documents disclosed in the course of resolving the dispute before the appointment of the mediator;
  • all information or documents disclosed in the course of the mediation;
  • all information and documents relating to the existence, conduct, status or outcomes of the mediation; and
  • all information and documents relating to the terms of any mediation settlement agreement.

Nothing contained in this agreement will be deemed to constitute partnership between the parties. Nothing contained in this agreement will deem either party to be the agent of the other party. Neither party will engage in any conduct or make any representation which may suggest to any person it is for any purposes, the agent of the other party.

This agreement sets out the entire agreement between the parties. It replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter. This agreement may not be modified except by written agreement signed by each party.

Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.

This agreement may be executed in any number of counterparts, each of which when executed and delivered must constitute an original of this agreement, but all the counterparts must together constitute the same agreement. No counterpart must be effective until each party has executed at least one counterpart.