Digital Media Agreement
Digital Media Agreement
BY AND BETWEEN
Company name, an existing company within the meaning of the Companies Act, 2013
and having its registered office at ADDRESS (hereinafter referred to as “COMPANY
NAME” which expression shall, unless it be repugnant to the context or meaning
thereof, be deemed to mean and include its successors- in- interest and permitted
assigns) of the One Part
AND
XYZ, a company incorporated/an existing company under the Companies Act, 2013
and having it registered office at _________________________________, hereinafter
referred to as “XYZ” (which expressions shall, unless it be repugnant to the context or
meaning thereof, be deemed to mean and include its successors-in-interest and
assigns) of the Other Part.
(COMPANY NAME and XYZ are hereinafter collectively referred to as the “Parties”
and individually as a “Party”)
WHEREAS
A. COMPANY NAME is engaged in the business of inter-alia, running hospitals and
providing healthcare services in various cities in India and has established multi-
specialty hospitals at various locations in India and has significant expertise and
goodwill in the field of cardiac and other medical care.
1. DEFINITIONS
1.2 Deliverable means any item to be delivered to COMPANY NAME by the Service
Provider
1.3 Intellectual Property Rights means patents, trade marks, Internet domain names,
service marks, registered designs, applications for registration of any of the foregoing,
copyright, design rights, trade and business names, semiconductor topography rights
and any other similar protected rights in any country.
1.4 Materials means all materials including but not limited to documents, software
code, plans, programs, data, diagrams, charts, reports, specifications, studies and
inventions and all drafts thereof and working papers relating thereto on whatever
media
1.5 Specifications means descriptions, designs, functional and technical requirements
for the Services and/or Deliverables
1.6 Trademarks shall mean the trademarks/brand names/logos among others whether
or not registered under the Trademarks Act, used or owned by COMPANY NAME,
and shall include the trademark/brand names/logos that may be created by XYZ for
COMPANY NAME from time to time during the course of this Agreement.
1.7 CMB Agency shall mean an entity which purchases time and space from Media
owners as per the Media Plan approved by COMPANY NAME or on behalf of
COMPANY NAME, in writing.
1.8 Fee shall mean the total remuneration payable to XYZ as stated in Annexure 1
hereof.
2. PURPOSE
XYZ shall provide the services to COMPANY NAME as per the requirements and
specifications intimated to them from time to time.
The quality of the service will be the essence of this agreement and shall from a
central factor of this agreement. XYZ will take all possible steps to ensure consistent
good quality of service as per benchmarks stipulated by COMPANY NAME.
3. TERM
3.1 This Agreement shall be effective from …….. and shall continue to remain in
force for a period of one (1) year and shall apply to all the campaign (s)
during the period of one year from the effective date, unless terminated
earlier in accordance with provisions thereof.
3.2 This Agreement may be renewed from time to time on the mutual consent of
both the parties subject to such terms and conditions as agreed upon.
XYZ shall provide COMPANY NAME all services necessary for the effective brand
building so as to generate desired positioning of COMPANY NAME in the market
and as may be specified by COMPANY NAME from time to time. Such services
shall, inter alia, include the following:
4.1 XYZ shall obtain information from COMPANY NAME on all aspects
including without limitation the functionalities, intended consumer segment
among others.
4.2 On the basis of the Profile, XYZ shall conduct quarterly and annual reviews
of COMPANY NAME’s digital strategy.
4.3 XYZ will ideate and design digital marketing concepts which will help
establish a unique and positive image of COMPANY NAME.
4.4 COMPANY NAME may at is sole discretion, select any of the concepts
developed by XYZ for further refinement or progress by XYZ
4.5 Upon selection of the concepts by COMPANY NAME, XYZ shall design
and develop web sites, banner designs, design schemes, emailers, slogans,
application software, games, videos among others which shall be original and
complimentary and shall be suitable for the effective marketing of
COMPANY NAME.
4.7 XYZ shall develop short and long-term strategies for marketing of
COMPANY NAME in terms of its web site, interactive media, social media,
mobile marketing, for brand building and other matters incidental thereto.
4.8 XYZ shall provide resources for content writing (for blogs, websites, social
network sites such as www.facebook.com, photo sharing sites) and brand
content seeding. In addition, XYZ will be actively involved in Electronic
Public Relations and Online Reputation Management (ORM) for
COMPANY NAME and release 2 online press releases per quarter.
4.10 XYZ shall undertake media planning and buying. This includes
advertisement operations, buying, reporting and access to resources such as
‘Comscore’ that will be used to create media plans and strategies. All metrics
like Cost Per Click (CPC) / Click Through Ratio(CTR) / Cost per fan
(CPF) /Social Engine Optimisation (SEO) / Search Engine Marketing (SEM),
Landing Page Optimisation (LPO) will be benchmarked to the best in the
industry
4.11 XYZ shall coordinate its activities with COMPANY NAME, media
partners of COMPANY NAME, CMB Agency and public relations service
provider, if any, whenever necessary and as requested by COMPANY
NAME, for the fulfillment of the objectives of this Agreement. It is
understood that COMPANY NAME reserves the right to purchase media
space itself for the Product(s) or through a CMB Agency. In the event,
COMPANY NAME does so through appointing another agency, it shall
communicate such appointment to XYZ.
4.12 All activities of XYZ shall be undertaken and completed in accordance with
the time schedule which may be notified by COMPANY NAME from time
to time.
4.14 XYZ shall ensure compliance with all the relevant rules and regulations
pertaining to services provided under this Agreement.
4.15 XYZ shall ensure the deployment of trained and competent personnel for
rendering services under this Agreement.
5. ACCEPTANCE
It is acknowledged by XYZ that the deliverables arising out of the services provided
by XYZ pursuant to this Agreement are subjective by nature and hence, the
acceptance of the same by ITC shall be subject to the satisfaction of ITC and hence,
ITC shall be entitled to reject the deliverables without any explanation if not satisfied
with the quality or suitability of the deliverables. ITC may, at its sole discretion,
request XYZ to rework on the deliverables if not satisfied with the results or without
prejudice to any other remedies that it may have pursue such remedies as also
available under this Agreement. This performance by XYZ of this Agreement shall be
deemed to be completed only on confirmation by the authorized/concerned manager
of ITC. However it is understood by XYZ that no such confirmation provided by ITC
shall or shall be deemed to dilute any remedies that ITC may pursue in future in
respect of deliverables which are not in accordance with this Agreement. ITC will
convey to XYZ from time to time the name(s) of the person(s) who are authorized by
ITC to give such confirmations. The list of such officials of ITC is enclosed as
Annexure 2 to this Agreement.
6. REMUNERATION
6.1 COMPANY NAME shall pay XYZ the fee in terms of Annexure 1 hereto for
services rendered and deliverables submitted in terms of this Agreement.
6.2 All payments shall be made by COMPANY NAME under this Agreement on
XYZ raising invoices on COMPANY NAME. Invoices will be raised by XYZ
on COMPANY NAME on a monthly basis at the end of every calendar month
for which the services have been provided. All payments shall be subject to
deduction of tax at source as applicable. All taxes, other than as expressly
provided for in Annexure 1, shall be borne by the Party on whom the same is
levied. The timely and adequate payment of any tax to the governmental
authorities shall be the responsibility of the respective Party on whom the
same is levied. In addition, all media invoices to be paid by COMPANY
NAME to XYZ will require submission of third-party monitoring reports
along with the original publisher invoice by XYZ and the server report of the
publisher. In case where third-party monitoring is not available, server reports
of publishers need to be submitted along with a justification on the non-
availability of the third party monitoring. All invoices raised by XYZ shall be
paid by COMPANY NAME to XYZ within 60 calendar days of receipt of the
clear and complete invoices along with all supporting documents.
7. TERMINATION
7.1 Without prejudice to any other rights and remedies, COMPANY NAME may
terminate this agreement immediately on giving written notice to XYZ if XYZ
commits a material breach of this agreement which is not capable of remedy
or commits a material breach of this agreement which if capable of remedy is
not remedied within 15 days of receipt by XYZ of a notice in writing
specifying the breach required to be remedied.
7.2 COMPANY NAME may terminate this agreement without assigning any
reason by giving thirty days notice.
7.3 Either party may terminate this agreement in case a winding-up decree has
been obtained against the other party or the other party enters into
liquidation or commits an act of bankruptcy or has an administrator or
receiver appointed over the whole or any part of its assets.
7.4 COMPANY NAME may terminate this agreement immediately in the event it
is not satisfied with the deliverables of XYZ despite a rework and
resubmission of the deliverables by XYZ pursuant to a request by COMPANY
NAME.
7.5 Any termination of this Agreement howsoever caused shall not affect the
continuance in force of any provision hereof which expressly or by
implication is intended to come into or continue in force after termination.
8. EFFECT OF TERMINATION/EXPIRATION
8.1 The parties will settle all undisputed dues of each other, outstanding as on
the date of the termination / expiration. This sub-clause shall not be
applicable in case of a termination by cause.
8.2 The parties agree that the termination or expiration of this Agreement,
shall not affect any obligations of either party, which may have accrued
prior to the termination of this Agreement. However, notwithstanding
anything contained in this clause, in case of termination by cause, XYZ
shall not be entitled to make any claim against COMPANY NAME.
9 INDEMNITY
XYZ shall indemnify COMPANY NAME , its directors, officers and employees from
and against all claims, demands, actions, suits and proceedings, whatsoever that may
be brought or made against each other by or on behalf of any persons, body, authority
whatsoever and whomsoever and all duties, penalties, levies, taxes, losses, damages,
costs, charges and expenses and all other liabilities of whatsoever nature which may
become liable to pay, incur or sustain by virtue of or as a result of the performance or
non performance or observance or non observance of any of the terms and conditions
of this Agreement by XYZ.
10.1 XYZ shall take prior written approval of COMPANY NAME before using
any Trade Marks of COMPANY NAME in any of the activities undertaken
pursuant to this Agreement.
10.2 XYZ acknowledges that all intellectual property rights whether vested,
contingent or future and all other rights of whatever nature in the deliverables
or materials or in relation to the services shall constitute work made at the
instance of COMPANY NAME, i.e. ‘work made for hire’, within the
meaning of the Copyright Act, 1957 and shall solely and exclusively vest
with COMPANY NAME in perpetuity. Such deliverables and materials shall
include, without limitation, all audio visual data, films, rushes, photographs,
unmixed data, sound, music, promotional concepts, shooting scripts,
photographs, still, notes and references, produced or arising in any form
including physical or electronic form.
10.3 XYZ agrees and acknowledges that all the deliverables under this Agreement
shall be the exclusive property of COMPANY NAME, as the work is done at
the instance of COMPANY NAME for valuable consideration, in respect of
any and all countries and their territories and COMPANY NAME is and
shall be the sole and absolute owner thereof and XYZ will not sell, trade,
disclose, give or intentionally or unintentionally make available any of the
Intellectual Property to any private or public individual, or corporation or
other entity, or any person and will take all reasonable precautions to prevent
the illegal or unauthorized use of the Intellectual Property.
10.4 COMPANY NAME shall be entitled to use all materials and deliverables
created under this Agreement in any manner whatsoever across the world
without any limitation. It is clarified that the right to use shall include,
without limitation, the right to publish, copyright, dub, distribute, edit,
excerpt, exhibit, adapt, modify, animate, use in composite or split, video
form, and in any medium including any promotional or merchandizing,
physical or electronic material or internet or for outdoor advertising.
10.5 Neither XYZ nor any of its employees, agents or independent contractors of
XYZ who have been associated with the services under this Agreement shall
have any claim to any right, title or interest in any kind or nature of
deliverables under this Agreement. If XYZ or any of its personnel or third
party is deemed to be the owner of any of the Intellectual Property, whether
registered/granted or not, under any law for the time being in force, XYZ
expressly assigns and agrees to assign or cause its personnel or such third
party to assign to COMPANY NAME or its assignee all right, title and
interest of whatsoever nature in and to all of the Intellectual Property. XYZ
will or cause its personnel or such third party to execute and deliver to
COMPANY NAME such instruments of transfer and take other such action
that COMPANY NAME may reasonably request, including, without
limitation, such assignments and other documents required to vest in
COMPANY NAME or its assignee the entire right, title and interest in and to
any of the Intellectual Property so that COMPANY NAME or its assignee is
the sole and absolute owner of the Intellectual Property in any and all
countries in which COMPANY NAME may desire such protection.
10.6 XYZ undertakes to perform at the request of COMPANY NAME all lawful
acts and execute, acknowledge, and deliver all documents/instruments
including assignments deemed necessary, useful or appropriate by
COMPANY NAME to vest in COMPANY NAME or its assignee the entire
and absolute right, title and interest in and to the Intellectual Property in any
and all countries including India and obtain and record title to the Intellectual
Property and to enable COMPANY NAME to prepare, file and prosecute
applications for and obtain copyrights and other forms of Intellectual
Property, as well as continuations, divisions, continuations-in-part, additions,
reissues, renewals, and extensions of the Intellectual Property , as
COMPANY NAME at any time deems useful or desirable to preserve such
interests in any and all countries selected by COMPANY NAME including
India, and to obtain and record title to copyrights and other forms of
Intellectual Property so that COMPANY NAME or its assignee will be the
sole and absolute owner of the Intellectual Property in any and all countries
including India in which COMPANY NAME may desire such protection.
10.7 XYZ represents that there are no impediments in assigning or transferring the
Intellectual Property to COMPANY NAME either with respect to any third
parties or in respect of any employees, agents or subcontractors engaged in
providing services to XYZ.
10.8 All materials and deliverables provided by XYZ should be original and own
creation of XYZ or the service provider engaged by XYZ, as the case may be
XYZ nor the Service Provider engaged by XYZ shall infringe any other
Third Party’s intellectual Property rights.
10.9 The provisions of this Clause will survive the expiry or termination of this
Agreement.
11. EXCLUSIVITY
During the term of the Agreement, XYZ agrees and undertakes that without
COMPANY NAME’s prior written consent in this regard, it shall not either directly
or indirectly or through its agents or subsidiaries or affiliates or any other party,
render any or all of its services rendered by it hereunder in relation to the services to
any other company, whether or not based or having its operations in India, engaged in
the business of healthcare in India.
12. APPROVALS
1.1 XYZ shall seek written approval of all visuals, art works, copy, scripts,
media-schedules, financial estimates among others.
1.2 Both COMPANY NAME and XYZ shall communicate to each other the
names of officials authorized to sign various documents or grant approvals
under this Agreement.
1.3 XYZ shall buy advertising space on the World Wide Web on behalf of
COMPANY NAME after obtaining express written instructions from
COMPANY NAME. COMPANY NAME shall honour XYZ’s commitments
arising out of any contracts or agreements entered into by XYZ on behalf of
COMPANY NAME with COMPANY NAME’s prior express written
sanction.
1.4 COMPANY NAME shall make every effort to put instructions and approvals
in writing. Where those are conveyed verbally, XYZ is required to confirm
them in writing.
13. CONFIDENTIALITY
13.1 Both the Parties shall keep confidential all information related to each
other or the other’s affiliates including all information in written or unwritten
form and whether or not specifically designated to be confidential. Such
information may include, without limitation, information related to past,
present, and/or future business activities, processes, techniques, business
plans, formulations, products, testing, storage and other methodologies and
norms, services, trade secrets and other technical knowledge including the
product briefs, samples, designs, work-in-progress and the fact and contents
of and relating to this agreement between the Parties, whether such
information is disclosed by any party or becomes known during the term of
this Agreement.
13.2 Both parties shall not disclose or use such confidential information for
any other purpose other than the one for which it is disclosed without the
prior written consent of the other save that either party shall be entitled to
disclose the same as is required to be disclosed by a party by an order of any
court of competent jurisdiction in connection with any proceedings of any
such court or otherwise by force of law or regulation having the force of law
or the rules of any regulatory authority. Prior to such disclosure, Disclosing
Party shall intimate the Other Party at the earliest.
1.3 Each Party agrees to use all reasonable efforts to take such action as
may be appropriate to prevent the unauthorized use and disclosure of, and to
keep confidential all such Confidential Information, including:
13.4 The foregoing obligations shall not apply, however, to the extent, but
only to the extent, of the Confidential Information, which:
13.5 On termination of the Agreement, the parties shall forthwith return all
the documents containing Confidential Information (received from the other
party) in its possession or in the possession of its Representatives. The
parties shall further destroy all copies of any analyses, compilations,
excerpts, summaries, studies or other documents (including, without
limitation, information stored on computer or any other electronic medium)
prepared by it for internal use or any other purpose, that may have been
derived from or otherwise reflect Confidential Information.
14. WAIVER
Failure or waiver to exercise any right or part thereof by either party under this
Agreement in one or more instances shall not constitute a waiver of those of those
rights in another instance. Similarly, any waiver by either party of any of the rights
established herein.
15. SEVERABILITY
16. RELATIONSHIP
17. AMENDMENT
Any terms, which amend or are supplementary to the terms of this Agreement, will be
valid only if made in writing and duly signed by the parties.
18. ANNEXURES
Any Annexures to the present Agreement are to be considered an integral part thereof.
This instrument contains the entire agreement between the parties and is merged
herein with all prior and collateral representations, promises, and conditions in
connection with the subject matter hereof. Any representation, promise or condition
not incorporated herein shall not be binding upon either party and this agreement
supersedes and is in lieu of all or prior or contemporaneous agreements between the
parties with respect to the subject matter hereof. Any modification of any provision of
this agreement must be in writing and signed by authorized representatives of the
parties hereto.
20. LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with the laws of
India. Should the parties fail to reach an amicable settlement in case of a dispute
arising out of the performance and/or interpretation of the present Agreement, the
parties submit to the exclusive jurisdiction of the competent Courts of Bangalore,
State of Karnataka, India.
Either Party represents that no benefit, either in cash or in kind has been
provided/received by/ to any officer or employee, or any relative/associate of any
officer or employees of the other Party or of any of its associate companies, in order
to secure this Agreement and XYZ undertakes not to provide any benefit, either in
cash or in kind to any such officer/ employee/ relative/ associate as reward or
consideration either for securing this Agreement or any other matter related to this
Agreement.
This agreement shall be executed in two originals for the benefit of the parties and
each copy shall be the original as against the other.
Neither party shall be liable for any failure or delay in performance under this
agreement to the extent said failures or delays are in the nature of Acts of God
including floods, fires, earthquakes, wars, riots, acts of governments occurring
without its fault or negligence or the effects of which persist despite reasonable efforts
undertaken by the party unable to perform to mitigate the effects, and such party does
everything reasonably possible to resume its performance under this agreement.
A party affected by an event of force majeure shall give the other party written notice,
with full details as soon as possible and in any event not later than three calendar days
of the occurrence of the cause relied upon. If force majeure applies, dates by which
performance obligations are scheduled to be met will be extended for a period of time
equal to the time lost due to any delay so caused.
In the event force majeure event continues for sixty (60) days or more, the non-
affected party shall have the right to terminate the Agreement by giving a further
notice of 15 days.
24. NOTICES
All notices referred to in this Agreement shall be in writing and shall be sent by
registered post acknowledgment due to the following addresses:
Either Party may from time to time designate by written notice to the other Party a
substitute address which it desires to be used for service. Service of any notices may
also be made personally.
In the event that either Party changes its address it shall, prior to the date of such
change, notify the other Party in writing. Thereafter such new address shall be the
address of that Party for the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have signed these presents the day and year
first hereinabove written.
REMUNERATION
ANNEXURE 2
AUTHORIZED SIGNATORY
ANNEXURE 3
SECURITY GUIDELINES FOR EXTERNALLY HOSTED COMPANY NAME
WEBSITES