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.