REFERENCE INTERCONNECT OFFER FOR NON-ADDRESSABLE SYSTEMS
This Reference Interconnect Offer (“RIO”), inter alia,
provides broad technical and commercial terms and conditions which an Affiliate
would need to satisfy to obtain interconnection from New Delhi Television
Limited (“NDTV”) for distribution over Non Addressable/Analogue Cable Systems.
The final Agreement (hereinafter referred to as “the Agreement”) shall be
subject to mutual negotiation and agreement and shall contain necessary clauses
setting out the details of the terms and conditions.
Definitions:
“Affiliate” shall mean an operator
including its agent or intermediary and/or, a cable operator who distributes, inter alia, satellite
television channels via the Distribution
System and shall also include link-operators and sub-operators of such multi
system operator and/or cable operator.
“Distribution System” shall mean the
non-addressable/analogue subscription television system(s) owned or controlled
by the Affiliate and all subscription television systems that are authorized by
Affiliate, or will be authorized by Affiliate (subject to NDTV’s prior written
consent), to carry the Subscribed Channels that are available solely for
reception by Subscribers located solely within the Area. It is clarified that
Distribution System shall not include DTH, mobile, broadband, internet, IPTV, wireless, Conditional Access
(CAS) or any other addressable system.
“Subscriber” shall mean each connection in a private residential household or a
private residential multi-unit dwelling which is served by the Affiliate and
receives the signals of the Affiliate at a place indicated to the Affiliate
without further transmitting it to any other person. Subscriber shall not
include commercial subscribers.
“Channels” or “Subscribed Channels” shall
mean “NDTV Imagine”, a 24 hour Hindi language General Entertainment Channel and
“NDTV Good Times”, a 24 hour English language Lifestyle Channel. NDTV reserves
the right to vary the Channels being offered for interconnection at its sole
discretion.
1.
Affiliate Registration
The Affiliate represents that it has a
valid Registration Certificate under the Cable Television Networks (Regulation)
Act, 1995 for running a cable television network and shall provide a copy of
the same at NDTV’s request, failing which NDTV shall have the right under law
to disconnect the signals of the Subscribed Channels provided to the Affiliate
without any notice.
2.
Area
2.1 ‘Area’ shall mean only the areas
agreed between the Parties within which the Affiliate shall distribute the
Subscribed Channels to the Subscribers through the Distribution System:
2.2 It
is expressly agreed that the Affiliate does not have implied or express
authority or permission to distribute the Subscribed Channels to hotels, bars,
restaurants, cinema halls/theatres, pubs, guest houses, hospitals, public
viewing areas, stadiums, clubs, industrial townships, or other commercial
subscribers, or the like, for which the terms and conditions (including rates) shall
be different than those contained herein and a separate written agreement shall
be required to be executed for the same.
2.3 If
the Affiliate fails to adhere to its obligations mentioned herein, the
Affiliate shall be deemed to have given unauthorized access to the signals of
the Subscribed Channels and NDTV shall have the right to disconnect/deactivate
the Subscribed Channels in addition to any other legal or equitable remedies
available to it.
3.
Term:
3.1
The Agreement will be valid from for an initial period of one year, unless
earlier terminated by either Party in terms
thereof. However, if the Parties agree to extend the Term, a new
agreement shall be executed upon such mutually agreeable terms and conditions.
4.
Subscription Fee:
4.1
Channel(s) shall be available to the Affiliate on ala carte basis. The charges
for distributing the channels shall be
as per rates declared and filed by NDTV with TRAI vide letter(s) dated 8th
April, 2008. NDTV reserves the right to alter or vary the rates for the
Channel(s) at its discretion.
4.3 All payments from Affiliate to NDTV shall
be paid net of any tax, levy or charge (except for Indian withholding taxes as
provided below), including but not limited to any service tax, which shall be
charged over and above the Subscription Fee. To the extent that Affiliate is
required under applicable law to withhold or deduct any taxes from any payment,
the amount of such payment shall be increased by the paid or deducted amount so
that NDTV receives the amount that would otherwise have been payable if such
taxes had not been required to be withheld or deducted (except for withholding
taxes).
4.2
The Subscription Fee is based only on the declared number of Subscribers by the
Affiliate. The Affiliate shall pay to NDTV, the Subscription Fee, for the
Subscribed Channels, every month in advance, as applicable and modified/amended
from time to time. The Affiliate shall pay to NDTV or its assigned distributor
the Subscription Fee by demand draft/pay order drawn in favor of “New Delhi
Television Limited”, unless NDTV provides a written approval to the Affiliate
to pay the Subscription Fee by cheque in favor of “New Delhi Television Limited
”.
4.4 If
during the Term of the Agreement the Affiliate desires to amend the Subscribed
Channels, NDTV may authorize such amendment subject to payment of such fees as
may be specified by NDTV.
4.5 In
the event of any increase in the number of Subscribers with respect to the
Subscribed Channels, the Subscription Fee shall be calculated on the increased
subscription base., subject to TRAI regulations in this regard.
4.6 NDTV has the authority to verify the
number of Subscribers in the area and demand the appropriate amount from the
Affiliate in that regard.
5.
Additional Charges:
5.1 Integrated Receiver Decoder(s): In
the event the Affiliate requests, NDTV shall, at its discretion, supply or
cause to supply the Equipment upon payment of the following charges:
5.2 Security
Deposit: Simultaneously upon execution of the Agreement, the
Affiliate shall pay interest free refundable security deposit (“Security Deposit”), per IRD.
5.3 Processing
Fees: Simultaneously upon execution of the Agreement, the
Affiliate shall pay one time non-refundable processing fee per IRD as per NDTV
policy.
5.4 Courier/Taxes: The Affiliate shall
pay the courier charges, octroi, taxes, and other levies and transportation
charges, if any, for the Equipment on actual.
5.5 It
is expressly agreed between the Parties that if within one month of the request
made, the Affiliate does not intimate NDTV of the receipt or non-receipt of the
Equipment then it will be deemed that the Affiliate has received the Equipment.
6.
Grant of Right:
6.1
NDTV will grants to the Affiliate a non-exclusive right to distribute the
Subscribed Channels to the Subscribers in the Area through the Distribution
System during the Term, subject to complying with the terms and conditions of
the Agreement.
6.2
The Affiliate's right to receive and distribute the Subscribed Channels shall
be conditional to the Affiliate’s performance of all its obligations including
payments of the subscription charges, and mere possession of the Equipment
shall not entitle the Affiliate to receive and/or distribute the Subscribed
Channels.
6.3 It
is clarified that the Subscribed Channels shall be provided by NDTV to the
Affiliate solely on the basis of and in reliance of the representations,
warranties and declarations made by the Affiliate to NDTV under the Agreement,
which will be followed, within two days from the date of execution of the
Agreement, by a complete and true list of the name and addresses of all of its
entire sub-affiliates, sub-operators, link operators, cable operator’ numbers
and details of the Subscribers, together with the detailed map of the Area. If
the Affiliate fails to adhere to its obligations mentioned herein, it shall be
deemed to have unauthorized access to the Subscribed Channels and NDTV shall be
entitled to terminate the Agreement and disconnect/deactivate the Subscribed
Channels in addition to any other legal or equitable remedies available to it.
7.
Termination:
7.1
The Agreement shall automatically terminate by efflux of time i.e. on the
completion of the Term.
7.2
Either of the Parties may, terminate the Agreement at any time by giving
written notice as per the TRAI regulations to the other Party. Upon the
termination of the Agreement, distribution of the Subscribed Channels by the
Affiliate shall be unauthorized and illegal and NDTV shall have the right to
disconnect/deactivate the signals of the Subscribed Channels.
7.3
NDTV shall have the right to disconnect/deactivate the distribution of signals
to the Subscribed Channels and terminate the Agreement subject to Applicable
Laws, and/or take any other action as may be appropriate, upon the occurrence
of any of the following:
7.4 In
the event the Affiliate fails to pay the Subscription Fee as and when it
becomes due and payable as set out in the Agreement;
7.5 In the event of non-compliance of the
Telecommunication (Broadcasting & Cable Services) Interconnect Regulations,
2004 dated 10th December, 2004 (as amended from time to time) and
failure on the part of the Affiliate to provide the names, addresses and
details of the sub-operators, link operators, cable operators and details of
the Subscribers;
7.6 In
the event of failure on the part of the Affiliate to place the Subscribed
Channels on the agreed upon frequency and band;
7.7 In
case of bankruptcy or insolvency of the Affiliate;
7.8 In
case of dissolution of the partnership or winding up proceedings against the
Affiliate;
7.9 In
the event of assignment of the Agreement by the Affiliate without prior written
approval of NDTV;
7.10 If the Affiliate
voluntarily or by operation of law loses control of the means to distribute the
Subscribed Channels in the Area;
7.11 If the Affiliate in
any manner jeopardises or interferes with NDTV’s intellectual property rights
in the Subscribed Channels or part thereof;
7.12 In the event NDTV
is subjected to legal, governmental or other adverse action under applicable
treaties, tariffs or Applicable Laws that restrict the right of NDTV to provide
the Subscribed Channels or any part thereof to the Affiliate or limit the
Affiliate's right or authorisation to distribute the Subscribed Channels or in
the event of any court order, which prevents/restricts NDTV to provide the
Subscribed Channels to the Affiliate under the terms of the Agreement;
7.13 If the Affiliate’s registration under the Cable
Television Networks (Regulation) Act, 1995 is cancelled and/or not renewed;
7.14 If the Affiliate is
in breach of any of its representations, obligations, warranties.
7.15 If any of the agreements between NDTV and its licensors
relating to NDTV’s right to distribute any of the Subscribed Channels in the
Area is terminated, then the Agreement shall be terminated for such channel.
8.
Supply of Equipment:
8.1
NDTV shall, at the request of the Affiliate supply or cause to be supplied the
Equipment to the Affiliate directly or through suppliers nominated by it, upon
such terms and conditions.
9.1
Smart Card
9.2
The Smart Card(s) supplied by NDTV shall at all times remain the sole and
exclusive property of NDTV and the Affiliate shall forthwith return the same to
NDTV upon expiry or termination of the Agreement for any reason whatsoever and/
or, at the request of NDTV. It is clearly understood by the Affiliate that mere
possession of a Smart Card(s) shall in itself not confer any right on the
Affiliate to receive the Subscribed Channels.
9.3
The Affiliate shall use the Smart Card(s) only in terms of the Agreement and at
the installation address mentioned in the Agreement. The Affiliate shall
not make any unauthorized use or tamper with the Smart Card(s) in any manner
whatsoever. However, in the event the Affiliate desires to move the Smart
Card(s) to some other address, the Affiliate shall obtain prior written
permission from NDTV. The Affiliate shall not sell, exchange or transfer the
Smart Card(s) in any manner whatsoever. In the event, upon any investigation or
inspection, if it is found that any Smart Card(s) is being mis-utilised,
mishandled or used in any manner, other than what has been specifically
provided for under the Agreement, the Affiliate shall be liable to compensate
NDTV for any loss or damages caused to NDTV by such mis-utilisation or
mishandling or unprescribed use. In any such event, NDTV shall also be entitled
to immediately deactivate the Smart Card(s) subject to Applicable Laws and also
to initiate appropriate civil and/or criminal proceedings in respect of such
mis-utilisation or mishandling or not prescribed use.
9.4 NDTV shall not be liable for any defect
in the Smart Card(s), which is attributable to any unauthorized use, tampering
or damage due to negligent use of the same by the Affiliate or any other
person. In the event the Smart Card(s) is lost, stolen or damaged, the
Affiliate shall immediately inform NDTV. In the event the Affiliate desires new
Smart Card(s) for any Channel forming part of the Subscribed Channels, the same
may be issued at the discretion of NDTV on payment of such charges as may be
specified by NDTV from time to time. In the event any of the Smart Card(s) is
not in use by the Affiliate, the same should be returned to the concerned
office of NDTV immediately.
10
Integrated
Receiver Decoder (IRD)
10.1 The IRD shall be
used by the Affiliate exclusively for viewing the Channel for which it is
issued. The IRDs supplied by NDTV, shall at all times remain the sole and
exclusive property of NDTV and the Affiliate shall forthwith return the same to
NDTV upon expiry or termination of the Agreement for any reason whatsoever and/
or, at the request of NDTV. It is clearly understood by the Affiliate that mere
possession of a IRD shall in itself not confer any right on the Affiliate to
receive the Subscribed Channels.
10.2 In the event, the
Affiliate merges or amalgamates with another entity or ceases to carry on the
business of multi system operator or cable operator and does not require the
IRD given to the Affiliate by NDTV, the Affiliate shall intimate the same to
NDTV immediately and shall take steps to forthwith return the Equipment to
NDTV. In the event the Affiliate fails to return the Equipment to NDTV, the
Affiliate shall be liable to pay a sum of Rs.5000/- per month per IRD, Smart
Card and remote (where applicable) during which the default continues.
10.3 Upon expiry or
termination of the Agreement, NDTV shall be entitled to take back the
possession of the Equipment from the Affiliate. Upon return of the Equipment in
proper working condition, the Security Deposit as specified in Agreement, after
adjusting amounts due from the Affiliate, if any, shall be refunded to the
Affiliate only upon the presentation of the original receipt of Equipment
issued by NDTV. In case the Affiliate fails to return the Equipment to NDTV,
the Affiliate shall be liable to pay a sum of Rs. 5000/- per month, per IRD, Smart Card
and remote (where applicable) during which the default continues. In case the
Affiliate returns the IRD, however, the Smart Card and remote (where
applicable) are damaged or missing, then the Affiliate shall be liable to pay
to NDTV such charges as specified by NDTV.
10.4 In case the IRD is
faulty, Affiliate shall ensure that the IRD is delivered to the nearest Service
Center. NDTV will have the IRD delivered to the Repair Center to have it
repaired at the sole cost of the Affiliate. NDTV shall ensure that the IRD
reaches the same Service Center after repairs.
10.5 In order to take
back possession of the Equipment from the Affiliate, the Affiliate shall ensure
that the personnel/representative of NDTV are allowed free and unobstructed
access to the premises of the Affiliate where the IRD, Smart Card and remote
(where applicable) are installed and take possession of the same. The Affiliate
shall not interfere with such procedure.
10.6 The Affiliate
acknowledges and recognizes that mere possession of the Equipment does not
automatically entitle the Affiliate to receive the Subscribed Channels.
10.7 Any violation/breach
of this Clause shall entitle NDTV to terminate the Agreement in terms of the
Agreement and to deactivate/disconnect the Subscribed Channels This is
without prejudice to the other legal and equitable rights and remedies
available to NDTV.
11.
JURISDICTION:
11.1 The exclusive
jurisdiction for the adjudication of disputes between the parties shall
be with the Telecom Disputes Settlement and Appellate Tribunal (“TDSAT”) at New
Delhi.
REFERENCE INTERCONNECT OFFER FOR DIRECT
TO HOME OPERATIONS
This Reference Interconnect Offer (“RIO”), inter alia, provides broad technical and commercial
terms and conditions as per the The Telecommunication (Broadcasting And Cable
Services) Interconnection (Fourth Amendment) Regulation, 2007, which an
Applicant would need to satisfy to obtain interconnection from New Delhi
Television Limited (“NDTV”) for Direct to Home (“DTH”) Operations. The final Agreement (“the Agreement”) shall
be subject to mutual negotiation and agreement and shall contain necessary
clauses setting out the details of the terms and conditions.
1. Submission
of Documents and other Preliminary Requirements
1. The
Applicant would need to provide to NDTV the documents specified in Annexure`A’ below depending
on its category.
2. The
Applicant shall also provide the specifications of the encryption systems (the
“Encryption System”) to encrypt content
on the Platform.
3. The
Applicant shall further provide all other technical specifications of the
Subscriber Management Systems and
provide other details necessary to satisfy the Subscriber Report and Anti Piracy requirements set
forth in this RIO.
2. Registration
of Applicants with MIB
Along with the request for entering
into an interconnection agreement, the Applicant must provide a certified copy
of the valid license certificate/license issued by the Ministry of Information
and Broadcasting, India, authorising the Applicant to operate a Direct to Home
Network. Any requests made without a copy of a valid license to operate a DTH
network shall not be entertained. The Applicant would further need to undertake
that the registration certificate would be renewed before expiry.
3. Agreement
Subject to satisfactory fulfillment of
the requirements specified in `1 and 2’ above, Applicant agrees to enter into
an Agreement as per this RIO or on mutually agreeable terms and conditions
(“Agreement”), which would govern the relationship between NDTV and the
concerned Applicant (“Affiliate”).
4. Rights
Granted.
The Affiliate will get non-exclusive
right to carry the Channels (as defined in paragraph 7 below) during the Term
via direct-to-home satellite transmission (“DTH”) in KU Band or any other band
in which the Affiliate is authorised to transmit by the Central Government on
the DTH subscription television platform owned and operated by Affiliate (the
“Platform”). Right will be for distribution to residential households only and
Affiliate agrees to distribute the Channels in the manner as set forth in the
Agreement. All other rights and means of distribution not specifically and
expressly granted to Affiliate are expressly excluded and reserved by NDTV,
including, but not limited to, PPV, VOD, SVOD, transmission via any
“headend-in-the-sky” (“HITS”) platform to any cable operators, multi system
operators, cable systems, IPTV systems and the Internet.
5. Term
The Agreement will be for an initial
period of one year with an option to renew for such further period and on terms
and conditions as may be mutually agreed.
6. Territory
Territory for DTH Operations shall mean
the territory of India only .
7. Channels
The term “Channel” means each channel,
as set forth below (collectively, the “Channels”):
a. NDTV
24x7
b. NDTV
Profit
c. NDTV
India
d. NDTV
Metronation Delhi
e. NDTV
Imagine
f. NDTV
Good Times
NDTV reserves the right to vary the
Channels offered for interconnection to an Affiliate at its discretion.
8. A-La-Carte
Rates of Channels
The A-La-Carte Rates of Channels shall
be as declared by NDTV and filed with the TRAI vide letter dated April 08,
2008, as modified from time to time at NDTV's sole discretion, subject to
applicable regulations.
9. Cessation
of a Channel
NDTV shall have the right to remove any
of the Channels if NDTV ceases to have the necessary rights to distribute such
Channel in the Territory (“Removed Channel”), including due to circumstances
outside its control, such as actions of governmental authorities or regulatory
bodies by giving written notice to the Affiliate as may be prescribed in the
applicable TRAI regulations. The terms and conditions pertaining to removal and
replacement of Channels shall be as mutually agreed under the terms of the
Agreement.
10. Subscribers
“Subscriber” means, for any calendar
month, each residential household, private residential dwelling unit, including
a dwelling unit in a residential apartment building, complex or any other
multi-unit dwelling, which is owned, leased or rented, which is served by the
Platform. Each household or unit in a residential multi-unit dwelling shall be
treated as a separate Subscriber. In addition, for each additional subscription
or connection within a single household or unit (an “Additional Connection”),
shall be treated as a separate Subscriber.
“Average Number of Subscribers” means the average number of Subscribers for a
month calculated by dividing (i) the sum of (A) the total number of Subscribers
on the first day of such month and (B) the total number of Subscribers on the
last day of such month by (ii) two. For purposes of calculating the Average
Number of Subscribers, the number of Subscribers in a multi-unit dwelling and
which is billed on a bulk single rate basis shall be equal to the
number of individual units in such
dwelling.
11. License
Fees
Affiliate shall pay to NDTV a fee for
each month of the Term (“the License Fee”) which shall be calculated in
accordance with the formula set forth below:
Monthly Fee = RPS x Average Number of
Subscribers (as defined above)
“RPS” means the Rate Per Subscriber
calculated as per the Channels selected by the Affiliate.
12. Payment
Terms
Payment of the License Fee shall be
made within 10 days after NDTV issues an invoice to the Affiliate (the Due
Date) to a bank account specified in the invoice, which invoice amount shall be
based on information provided in the Subscriber Report’ provided, however that
if the Affiliate fails to deliver the necessary information of its Subscriber
Report by the Subscriber Report Deadline, the Affiliate will pay to NDTV an
amount equivalent to the highest Monthly Fee payable during the previous three
(3) months. Further the Affiliate shall also remain liable to pay to NDTV any
additional amounts found payable pursuant to the delayed information from the
Subscriber Report upon delivery of the information to NDTV.
All payments from Affiliate to NDTV,
including the License Fee, shall be paid free and clear of and shall not be
reduced by any tax, levy or charge (except for Indian withholding taxes as
provided below), including but not limited to any service tax. To the extent
that Affiliate is required under applicable law to withhold or deduct any taxes
from any payment, the amount of such payment shall be increased by the paid or
deducted amount so that NDTV receives the amount that would otherwise have been
payable if such taxes had not been required to be withheld or deducted (except
for withholding taxes).
The Affiliate shall be required to make
payments by the Due Date in accordance with the terms hereof, and any failure
to do so on the part of Affiliate shall constitute a material breach of the
Agreement. Affiliate, on demand of NDTV, agrees to pay interest to NDTV on any
sums, which remain unpaid more than 10 days following the Due Date or the date
on which they are due and payable. Such interest shall accrue from the Due Date
and shall be payable at a rate equal to 18 percentage (%) per annum (“Late
Payment Interest Rate”). The imposition and collection of interest on late
payments does not constitute a waiver of Affiliate’s obligations to pay the
License Fee by the Due Date, and NDTV retains all of its other rights and
remedies under this Agreement.
13. Transmission
of Service-AS IS
Affiliate agrees to carry each of the
Channels AS IS, in its entirety, in the order and at the time transmitted by
NDTV’s licensors without any editing, delays, alterations, interruptions,
picture squeezing or re-sizing, insertion of graphic or animated overlays,
pull-throughs or crawls, deletions or additions, except as authorized in
advance in writing by NDTV, including for any electronic program guide as
referenced below. Affiliate shall not redistribute any portion of any of the
Channels except as specifically authorized by NDTV. NDTV and its licensors
reserve the right to alter any or all of the Channels, including the names of
the Channels and the programming exhibited on the Channels.
14. Delivery
of Channels
NDTV shall deliver, or cause the
delivery of, the Channels to Affiliate and Affiliate shall be responsible, at its
own cost, to further distribute the Channels in encrypted form as provided in
this Agreement.
15. Packaging/Tiering
of Channels
The Affiliate undertakes to NDTV that
the Channels shall not be disadvantaged or otherwise treated less favourably by
the Affiliate with respect to competing channels on a genre basis while
including the Channels in any package or tier. Further the Affiliate shall keep
NDTV informed of the packages or tier in which the Channels are made available
and any shift of the Channel(s) shall be only after providing 15 days prior
written intimation by the Affiliate to NDTV.
Notwithstanding anything contained
herein, the Affiliate undertakes that the Channels shall always be included in
the Basic Tier offered by the Affiliate to its Subscribers throughout the Term
of the Agreement.
16. Authorized
Transmission/ Security
Affiliate shall transmit each of the
Channels through the Platform to subscribers located in the Territory in the
manner of transmission and distribution specified in this Agreement with
respect to the Platform, and shall scramble the signal for such transmission,
in accordance with technical parameters and specifications as mutually agreed
between the parties at the time of entering into the Agreement (the “Technical
Specifications”). The Parties acknowledge and agree that any changes to the
Technical Specifications and any material changes to the Platform’s security
and encryption technology, including the Encryption System (other than standard
software upgrades which are deemed not to be material changes), during the Term
will only be made as may be agreed between the Parties in writing from time to
time; provided, however, that any such consent shall not be unreasonably
withheld or delayed.
During the Term, Affiliate’s
transmitting facilities shall be fully capable of individually addressing
Subscribers on a channel-by-channel and decoder-by-decoder basis. Affiliate
shall install decoding equipment and all other equipment necessary to receive
and distribute the Channels, at its own cost and expense. Affiliate
acknowledges and agrees that set-top boxes, and their installed content
protection systems, used by subscribers of the Platform shall prohibit the use
of digital outputs.
Affiliate further agrees to make no use,
nor authorize or permit others to make use, of the Channels or the programming
on the Channels other than as expressly set forth in this Agreement. NDTV shall
have the right in its sole discretion to either immediately suspend the
transmission of any or all of the Channels by Affiliate, or terminate this
Agreement by providing at least 15 days’ prior written notice, if Affiliate
distributes any or all of the Channels in a manner not authorized or for a
purpose not specifically provided for by this Agreement. Affiliate agrees that
it shall comply at all times with NDTV’s Technical Specifications.
Affiliate acknowledges that NDTV and
its licensors may in certain circumstances not control the appropriate rights
to exhibit certain programs on the Channels in the Territory (“Withheld
Programs”). Accordingly, Affiliate acknowledges and agrees not to exhibit, and
shall block (or “black out”) the transmission of, any Withheld Program upon
notification from NDTV and shall indemnify NDTV for any failure to block such
Withheld Program from its transmission.
Affiliate shall use its best efforts to
maintain for the Channels first-class signal transmission quality in accordance
with the highest international industry standards, subject to NDTV delivering
the Channels to Affiliate of a quality sufficient to permit Affiliate to
reasonably comply with such standards. Affiliate shall maintain a service
availability (a service free from viewer discernible problems including,
without limitation, video with no audio, audio with no video or significant
signal distortion) that meets or exceeds 99.95% reliability per month (which
represents service outages incurred by Subscribers not exceeding approximately
22 minutes per month) without any interruption or deviation from the daily
transmission schedule, and shall immediately notify NDTV of any degradation to
any of the Channels’ signals.
17. Security
And Anti-Piracy Requirements
Affiliate shall not authorize, cause or
suffer any portion of any of the Channels to be recorded, duplicated, telecast,
exhibited or otherwise used for any purpose other than for distribution by
Affiliate at the time the Channels are made available. If Affiliate becomes
aware that any unauthorized third party is recording, duplicating, telecasting,
exhibiting or otherwise using any or all of the Channels for any other purpose,
Affiliate shall immediately so notify NDTV and Affiliate shall take all steps
necessary to prevent such unauthorized use. Affiliate shall not authorize or
permit the exhibition of any or all of the Channels or any portion of the
Channels at any place where admission for exhibition of such Channels is
charged. Affiliate shall not authorize or permit infringement of any
copyrighted material exhibited on the Channels, or use the rights granted to it
under this Agreement for any unlawful purpose. If so instructed by NDTV,
Affiliate shall immediately shut off or de-authorize the transmission to any
unauthorized party after it receives a request from NDTV. In such instances
where Affiliate is the only party that is allowed to initiate legal action
against an unauthorized party, including, but not limited to, the filing of
criminal complaints against such unauthorized party, Affiliate agrees to
initiate such legal action. NDTV plans to actively combat piracy of the
Channels in the Territory and to work closely with Affiliate in such efforts.
Affiliate shall, at its own expense, take all necessary steps to comply with
obligations set forth in Annexure-
“B”.
18. Advertising/ Marketing/ Promotion
Affiliate shall promote all the
Channels and the programming exhibited by all of the Channels in the same
manner and to the same extent as any other channel, which is distributed by
Affiliate; provided, that Affiliate may carry out any specific promotion with
respect to a certain specific channel(s), if such channel(s) provide Affiliate
with financial assistance with respect to such promotion. Notwithstanding the
above, Affiliate agrees that it shall provide the Channels with the same
opportunity to carry out specific promotions. Moreover, Affiliate agrees that
the Channels will be treated similarly, in terms of size and prominence (taking
into consideration the context) to other channels in any advertising material
where the Channel Marks (as defined below) appear with the logos and names of
all other channels. Nevertheless, in promoting the Channels, Affiliate shall
use only promotional material provided or pre-approved by NDTV in strict
adherence to NDTV’s instructions, in the form provided by NDTV (or, if created
by or on behalf of Affiliate, in the identical form presented to NDTV for
NDTV’s prior written approval) and only for the purpose of promoting the
Channels. NDTV shall make available to Affiliate promotional and marketing
materials in accordance with NDTV’s then current practices. NDTV may, from time
to time, undertake marketing tests and public polls or other research in
connection with the Channels. Affiliate shall cooperate with NDTV in such
research by making available information reasonably requested by NDTV. NDTV and
Affiliate agree to discuss joint marketing efforts and the coordination of
marketing and promotion for the Channels and the Platform.
NDTV will also be treated similarly to
other programmers in respect of opportunities for participation in events and
promotions that Affiliate undertakes for the promotion of channels, subject to
and considering commercial agreements for each such event and promotion and the
context of each such event and promotion.
In addition, if Affiliate has or
creates an electronic programming guide or other navigational tools for the
Platform (“EPG”), or a printed programming guide for distribution to its
subscribers (a copy of which shall be sent to NDTV simultaneously with mailings
to subscribers), then the programming schedule of each of the Channels shall be
prominently featured in them in the order of their channel/frequency position
(and Affiliate shall use its best efforts to ensure that Subscribers are
advised of any changes in the programming schedules of the Channels). NDTV
shall provide to Affiliate information in a format that is reasonably requested
by Affiliate for this purpose. For purposes of this Agreement, “Channel Marks”
shall mean all Intellectual Property (as defined below) owned or used by NDTV
or its affiliates or licensors from time to time in connection with the
Channels, including, without limitation, the trade names and marks specified by
NDTV or otherwise notified in writing by NDTV from time to time.
19. Subscriber
Reports and Subscriber Management
Within 7 days after each month of the
Term (the “Subscriber Report Deadline”), Affiliate shall provide a monthly
report (“Subscriber Report”) to NDTV that sets out the number of households
receiving each of the Channels, the total number of subscribers at the
beginning and end of each month, and such other information as NDTV may require
for determining the License Fee. Affiliate shall also include in its Subscriber
Report, comprehensive details of all incidents of piracy and signal theft
involving the Platform, the names of perpetrators involved in such incidents,
and any actions, including but not limited to the filing of police reports and
lawsuits, taken against such perpetrators since the prior Subscriber Report or
meeting. The obligation of Affiliate to provide to NDTV the Subscriber Reports
shall survive termination of this Agreement until NDTV receives the Subscriber
Reports for each relevant month for which any License Fee is payable.
Affiliate shall supply to NDTV within 90
days after the end of each Year a statement attested to by Affiliate’s Chief
Executive Officer and Chief Financial Officer (or their equivalent) certifying
as to the completeness and accuracy of all information contained in all
Subscriber Reports relating to such Year. NDTV’s authorized representatives
(from an independent nationally recognised firm of Accountants and who are
bound by the confidentiality terms as set out in this Agreement (the
“Auditors”) shall have the right, to review or audit the books and records of
Affiliate every once in a calendar year, relating to the Channels for the
purpose of verifying the amounts properly payable to NDTV under this Agreement,
the information contained in Subscriber Reports and Anti Piracy obligations as
set out in this Agreement. If such review or audit reveals that additional fees
are payable to NDTV, Affiliate shall immediately pay such fees, as increased by
the Late Payment Interest Rate. If any fees due for any period exceed the fees
reported by Affiliate to be due for such period by five (5) percent or more,
Affiliate shall pay all of NDTV’s costs incurred in connection with such review
or audit, and take any necessary actions to avoid such errors in the future.
Further in such a case where there is a discrepancy of 5% or more in the
License Fee during a review or audit, the audit shall be permitted to be
carried out once in every quarter in the immediately succeeding calendar year.
Affiliate will maintain throughout the
Term and for twelve (12) months thereafter (or such longer period as required
by law) (the “Records”) sufficient records to enable NDTV to verify them
Subscriber Reports supplied by Affiliate pursuant to this Section, the payments
due to NDTV hereunder and Affiliate’s compliance with its anti-piracy
obligations as set out in this Agreement. Affiliate agrees that it shall
maintain the customer databases compiled by Affiliate under this Agreement, and
that it shall provide NDTV with reasonable access to such databases. Affiliate
will maintain at its own expense a subscriber management service (“SMS”)
capable of, at a minimum:
(i) Maintaining
a computerised customer database capable of recording adequate details of each Subscriber, including name, address, chosen
method of payment and billing;
(ii) Administering
subscriptions of Subscribers by producing and distributing contracts for new Subscribers and setting up and maintaining
an infrastructure whereby Subscriber contracts are collected, returned and recorded in the SMS database for ongoing
administration;
(iii) Handling
all ongoing administrative functions in relation to Subscribers, including,
without limitation, billing and
collection of subscription payments, credit control, sales enquiries and handling of complaints;
(iv) Administering
payments of any commission fees from time to time payable to authorised Affiliate agents for the sale to
Subscribers of programming packages;
(v) Obtaining
and distributing receivers and smartcards, if applicable, to Subscribers, and
issue replacement smartcards from time
to time in its discretion; and
(vi) Enable
new Subscribers via the SMS over-the-air addressing system and disable
defaulting Subscribers from time to
time in its discretion.
20. Integrated
Receiver Decoders
Affiliate may be required to purchase
from the concerned vendors the IRDs according to required Technical
Specifications or, depending on availability, NDTV may provide to Affiliate
such IRD’s wherein refundable security deposit before the delivery has to be
paid. The IRD’s provided by NDTV shall at all times remain the property of
NDTV.
21. Termination
and Suspension
A) NDTV
may terminate the Agreement at any time, by giving a notice as may be
prescribed in the Applicable
Regulations, if (i) NDTV, or its respective successors or assigns, cease to operate or do business in the
Territory for any reason; (ii) if Affiliate breaches any of its representations or warranties or its
material obligations under this Agreement (including non payment of the License Fee within the timelines
herein); (iii) if Affiliate becomes insolvent or
winding up proceedings are initiated against the Affiliate or if the business
or property of the Affiliate is
subject to management of a receiver
appointed by any court for whatsoever reason.
B) Affiliate
may terminate this Agreement if NDTV breaches any of its material obligations
under this Agreement and fails to cure
such breach within 30 days after NDTV receives written notice from Affiliate. In addition, Affiliate may cease to distribute
a Channel if it receives written notice
from the Ministry of Information & Broadcasting of India for such period of
time as mandated (which such period
may be subsequently reduced).
C) In
each circumstance where notice is sent to a defaulting party in accordance with
this Section, representatives of
each Party may immediately meet to resolve the issue.
22. Effect
of Termination
a) Upon
expiry or termination of this Agreement for any reason, each party shall return
to the other party all documents,
Confidential Information, and other material belonging to the other party in its possession.
b) Termination
or expiry of this Agreement will not affect the obligations, rights and
liabilities of the parties that
are expressly or impliedly to survive termination or expiry.
23. Regulatory Intervention.
In the event that there is any change
to any applicable statutes, enactments, acts of legislation or parliament,
laws, ordinances, rules, by-laws or regulations of any government or statutory
authority in India including but not limited to the Ministry of Information and
Broadcasting and The Telecom Regulatory Authority or any final un-appeal able
order of any competent court or tribunal which would have a material effect on
the either of the Parties, then the affected Party may request that the Parties
consult as soon as reasonably practicable with a view to negotiating in good
faith an amendment to this Agreement, such amendment to take effect from the
date of such change. In the event that
the Parties are unable to agree on an amendment within forty-five (45) days of
the date of the request by the affected Party, then either Party
may request TDSAT to resolve such dispute.
24. Indemnification
Affiliate hereto shall indemnify and
hold NDTV, and its respective officers, directors, employees, agents and
affiliates, harmless from and against any and all claims, damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and related costs)
arising out of the breach of any representation, warranty or undertaking made
by it hereto.
ANNEXURE “A”
A. If
the Affiliate is an individual or a sole proprietor:
(a) Photograph
of the proprietor of the Applicant firm.
(b) Proof
of residence – Passport / Voter’s ID Card/ration card/Electricity bill / Income
Tax Returns.
(c) Self
attested copy of Passport / Voters ID / PAN Card / Driving license for
signature verification.
B. If
the Affiliate is a partnership firm:
(a) Certified
true copy of the registered Partnership Deed.
(b) Separate
powers of attorney signed by all partners authorising the signatory to sign
this Agreement and any
amendment thereto and all related documents on behalf of the Firm.
(c) Photograph
of the signatory.
(d) Copy
of Passport / Voters ID / PAN Card / Driving license for signature verification
attested by the authorised signatory.
C. If
the Affiliate is a company:
(a) The
Certificate of Incorporation – certified by the Company Secretary / Director.
(b) Memorandum
and Articles of Association of the company.
(c) Board
resolution certified by the Company Secretary/Director authorizing the
signatory to sign the Agreement and any
amendment and all related documents on behalf of the Company.
(d) Copy
of Passport / Voters ID / PAN Card / Driving license for signature verification
attested by the authorised signatory.
(e) Photograph
of the signatory.
D. If
the Affiliate is a Hindu Undivided Family “HUF”
(a) The
photograph of the Karta.
(b) The
Proof of Residence - Voters Identity Card or Passports of Karta or Electricity
bill / Income Tax returns.
(c) The
names of all coparceners and his/her relation with the Karta.
(d) Relevant
documents, including any Partition Deed, Family Settlement Deed, etc.
(e) Copy
of Passport / Voters ID / PAN Card / Driving Licence for signature verification
attested by the Karta.
E. If
the Affiliate falls into the ‘Other’ category
(a) Such
documents as required by NDTV.
ANNEXURE-“B”
Affiliate’S ANTI-PIRACY OBLIGATIONS
1. General
1.1 All
Fingerprinting hereunder is compliant with the BIS Specification for Digital
Set Top Box (STB) for Direct to
Home (DTH): IS 15377:2003.
2. STBs,
Smart Cards, Systems and Procedures.
2.1 In
order to ensure that each STB is capable of being used for Fingerprinting,
Affiliate agrees that the STB
supplied to residential Subscribers will conform to the BIS standards as
provided in BIS Specification for
Digital Set Top Box for Direct to Home (DTH): IS 15377:2003.
2.2 Affiliate
represents and agrees that there are adequate systems, processes and controls
in place regarding the distribution
of STBs and Smart Cards so that they are only sold within the Territory by Affiliate or by its authorised
dealers and such sales are only made to bona fide Subscribers residing in the Territory and installations
are made by Affiliate or its designees at an
address in the Territory. Adequate systems, processes and controls shall
include, without limitation,
Affiliate:
2.2.1 collecting
and maintaining complete up to date records of each and every residential Subscriber’s details, and such Subscriber’s
STB and Smart Card including, without limitation, the particulars specified in paragraph 2.4;
2.2.2 requiring
all residential Subscribers to submit a utility bill or bank statement as proof
of address, including any residential
Subscribers who have been previously de-authorised prior to re-authorisation, or otherwise
independently verify the address prior to activation of any STB and Smart Card;
2.2.3 investigating
any multiple Smart Cards issued under one individual name or address (other than for mirror STB’s), including visiting
the premises of such individuals or addresses from time to time;
2.2.4 deploying
verification officers on a regular basis to visit and audit the accuracy and
veracity of the residential Subscriber
databases on a regular basis;
2.2.5 ensuring
compliance by dealers including unannounced visits to dealers’ premises from
time to time;
2.2.6 requiring
that for every change of address on the Affiliate system and therefore
re-location of a STB, there is an
independent physical verification of the new residential address; and
2.2.7 deauthorising
any STB or Smart Card that is found outside of the Territory or in the
possession of a person who is
not a bona fide residential Subscriber.
2.3 Affiliate
agrees that all of its STBs and Smart Cards: (i) are sold and installed
together as a pack only in the
Territory and only at the premises of Subscribers whose address has been verified in accordance with paragraph 2.2.1;
and (ii) employ card-pairing technology that ensures
once a Smart Card is activated, it is paired to a particular STB and that the
Channels cannot be viewed if such Smart
Card is removed and used with any other STB.
2.4 Affiliate
agrees that all installations of STBs and Smart Cards are done directly by
Affiliate or through its authorised
dealers and only within the Territory, and that the installer for every installation physically checks and
ensures before installation and activation of a STB and Smart Card that the address where the installation is being
done matches with the address as supplied
by the residential Subscriber at the time of purchase of the STB and which is
the same as detailed in the
subscriber management system. In accordance with paragraph 2.2.1, Affiliate’s subscriber management system shall
contain all of the following information items for each residential Subscriber prior to activation of a Smart
Card and STB for such residential Subscriber:
2.4.1 Name;
2.4.2 Installation
address;
2.4.3 Billing
address (if different);
2.4.4 Telephone
number of the installation address, where applicable;
2.4.5 Residential
Subscriber’s unique subscriber reference or subscription agreement number;
2.4.6 Service/Channels/Packages
that have been selected;
2.4.7 Name
and unique reference number of the dealer who sold the STB to such residential Subscriber;
2.4.8 Name
and unique reference number of the dealer who sold the subscription to such
residential Subscriber (if
different);
2.4.9 Name
and unique reference number of the installer (if different from the dealer);
2.4.10 Smart
Card number; and
2.4.11 Unique
STB number.
2.5 Affiliate
agrees and undertakes that it shall not knowingly or negligently activate, or
otherwise reactivate, as the case may
be, those Smart Cards, wherein the Channels can be accessed from addresses which are:
2.5.1 not
bona fide or do not match the addresses as supplied by the relevant residential
Subscribers as detailed in the
subscriber management system;
2.5.2 outside
of the Territory; or
2.5.3 that
of a cable head end or any other distributor of such Channel to residential
subscriber.
2.6 In
order to ensure that the Smart Card is only activated for bone fide
Subscribers, Affiliate further
agrees that there are adequate controls to ensure (a) a Smart Card is not
activated before installation with
its paired STB; and (b) that such Smart Card is activated at the address of the residential Subscriber which matches with the address assupplied
by the residential Subscriber at the
time of purchase of the STB and which is the same as detailed in the subscriber management system.
2.7 Affiliate
agrees that its subscriber management system allows viewing and printing
historical data, in terms of total
activation, de-activation and re-activation of all residential Subscribers and all other records required under
Paragraph 2.4.
2.8 Affiliate
shall ensure that on screen display should support a minimum of 200 characters.
3. Fingerprinting
3.1 Affiliate
shall ensure that it has systems, processes and controls in place to run
Fingerprinting at regular intervals as
reasonably requested from time to time (such requests not to unreasonably interfere with Affiliate’s
business operations).
3.2 Affiliate
shall ensure that all STBs should support Fingerprinting and should be
compatible for running Fingerprinting.
3.3 Affiliate
shall ensure that it shall be able to operate the Fingerprinting across all
residential Subscribers or any
sub-set of residential Subscribers based on pre-set parameters and such Fingerprinting should, apart from the
foregoing, be possible and available on global, group and regional bases at all times.
3.4 Affiliate
shall ensure that the Channels’ Fingerprinting should pass through without
masking or tampering with respect to
time, location, duration and frequency.
4. Conditional
Access and other systems
4.1 Affiliate
agrees that it shall, at its sole cost, be responsible for ensuring the
Channels are distributed via a
digital, encrypted format signal receivable through its conditional access system (“Conditional Access”) only by its
bona fide Subscribers to the Channels.
4.2 Affiliate
agrees that: (a) both the Conditional Access and Subscriber billing systems
shall be of a reputed organization and
are currently being used by other pay television services that have, in aggregate, at least 1 million
subscribers in the global pay television market outside of the Territory; and (b) both its Conditional
Access and subscriber management systems shall be integrated and any activation/de-activation shall be
processed simultaneously through both systems.
5. Piracy,
piracy reports and prevention
5.1 Each
party shall immediately notify the other party if it ascertains or becomes
aware that:
5.1.1 Any
Smart Card or STB is being located, supplied or sold outside the Territory,
5.1.2 Any
of the Channels are being viewed via a Smart Card or STB by a STB party that is
not a residential Subscriber,
5.1.3 A
Smart Card is being used for viewing the Channels anywhere other than the
registered address of a
residential Subscriber in the Territory, or
5.1.4 A
Smart Card and/or STB is being used by a cable Affiliate to distribute any of
the Channels, (each, a “Piracy Event”).
5.2 If
NDTV becomes aware of a Piracy Event then, at NDTV’s reasonable request,
Affiliate shall take all
reasonable necessary steps to prevent or to stop such unauthorised or illegal
use of the Channels or signals thereof.
5.2.1 In
the event NDTV decides to take legal or other action against any infringing
party committing or causing any Piracy
Event, Affiliate shall provide all reasonable assistance to NDTV to prevent or combat such Piracy Event.
5.2.2 If
Affiliate wishes at its cost to take legal or other action of any kind against
any party alleged to be infringing a
right of NDTV, where NDTV shall be one of the parties to such action, it shall notify NDTV in writing and seek
NDTV’s prior written consent. Where NDTV consents to Affiliate taking legal or other action on behalf of NDTV,
Affiliate Sky shall keep NDTV fully
informed of the progress of such action. Affiliate shall not settle, attempt to
settle or otherwise compromise the
rights of NDTV or its Affiliates without the prior written consent of NDTV.
5.3 If
its Conditional Access is hacked or otherwise compromised, Affiliate agrees to
change or upgrade, within 180 days of
Affiliate becoming aware of such compromise, its Conditional Access and/or Subscriber Management
systems to ensure that the Conditional Access cannot
be hacked or compromised
within the Territory. If Affiliate does not make such change or upgrade within such period of time,
NDTV shall have the right to suspend or terminate this Agreement. During such period, Affiliate shall use reasonable
efforts to implement a temporary
fix to protect the Channels.
5.4 Affiliate
shall investigate and report to NDTV any detected incidents of copying,
transmitting, exhibiting or other
illegal use of the Channels via a STB and/or Smart Card, or any illegal or unauthorised distribution or use of the
STBs or Smart Cards or other equipment that enable access to the Channels.