[OLD] Advertising Services Agreement
These Terms were last modified on April 17, 2024.
A. These terms and conditions (“Terms”) govern the use of Novi’s advertising services ( “Advertising Service” or “Services”, described in further detail in these Terms).
B. The Terms constitute a binding and enforceable contract between Novi Digital Entertainment Private Limited, having its office at Star House, Urmi Estate, 95 Ganpatrao Kadam Marg, Lower Parel, Mumbai 400013, India (“Novi”, “we”, or “us”) and you, a user of the Services, who has accepted a separate ad sales proposal with Novi (“Ad Sales Proposal”) and is identified as a “Client” within the Ad Sales Proposal. Through these terms, Novi and the Client are collectively referred to as “parties”.
C. The Terms include any guidelines, additional terms, policies, and disclaimers made available or issued by Novi to the Client from time to time.
D. The Client represent and warrants that it has full legal capacity and authority to agree and bind itself to these Terms. Where the entity providing acceptance to this Agreement is an Agency, the Agency represents and confirms that it is a duly authorized person, firm or company representing the Advertiser, acting for and on behalf of the Advertiser as its agent and is fully empowered by the Advertiser to do and abstain from all acts required to be done or to be abstained from under this Agreement, including but not limited to executing this Agreement, release orders, receiving invoices, discharging dues to Novi, receiving notices served by Novi.
E. How to read these Terms: Schedule 1 at the end of these Terms sets out definitions of capitalised terms and principles that will assist with the interpretation of these Terms
The Parties agree as follows.
SERVICES:
1.1 The authorises Novi and its affiliates to place advertising material and content (“Advertising Creatives”) on property provided, broadcasted, transmitted, or otherwise made available by Novi, its affiliates, or Licensors (each, a “Property”, which term includes, without limitation, movies, shows, episodes, television films, events, live events, live matches, deferred or delayed matches, highlights, and pre, mid, post shows, and the like).
1.2. Entitlements
(a) The Ad Sales Proposal shall identify the Ad Impressions estimated to be delivered and/or committed and/or User Actions (collectively, “Entitlements”) together with details of the Campaigns (including schedules and extensions, if any). Unless expressly agreed upon in the Ad Sales Proposal, Novi shall have the sole discretion to determine the Property and the timelines in accordance with which the Advertising Creatives shall be served and/or displayed on the Platform. While Novi shall use commercially reasonable efforts to book Entitlements on the Platform, the Client agrees that all bookings shall be subject to availability of inventory on the Platform.
(b) Entitlements shall be deemed to have been consumed for the purposes of these Terms (i) regardless of whether the Client utilises such Entitlements, (ii) if the Client fails to submit Advertising Creatives to Novi in accordance with Clause 2, or (iii) if there is otherwise a delay in submissions of Advertising Creatives to Novi in accordance with Clause 2.
1.3. Campaigns
The Ad Sales Proposal shall specify (a) the type of variable cost campaigns and (b) agreed upon User Actions. For more details on how variable cost Campaigns and User Actions are determined, please view Novi’s Policy on variable cost campaigns, available here.
1.4. Branded Content
Any branded content services that Novi provides to the Client (“Branded Content Services” which, for the avoidance of doubt, falls within the scope of Services) shall be specified in the Ad Sales Proposal and shall, in addition to the terms hereunder, be subject to Novi’s policy regarding the Branded Content Services, available here.
ADVERTISING CREATIVES:
2.1. Subject to the terms of the Branded Content Services, the Client shall be solely responsible for the development and creation of the Advertising Creatives and their delivery to Novi
2.2. Unless specified in the Advertising Specifications Document, Novi shall have the right to determine the placement of Advertising Creatives. If the Advertising Specifications Document sets out multiple Ad Placements, the Client may select multiple Advertising Creative(s) to be displayed on each Ad Placement location by providing Novi with prior written notice.
2.3. The Client shall provide Novi with the Advertising Creatives, and any updates or modification thereto, at least 5 (Five) days prior to the date of first display of the Advertising Creative as specified in the Ad Sales Proposal. Novi shall have the right to undertake qualitative and quantitative checks to ensure that the Advertising Creatives comply with the Advertising Specifications Document, Novi’s advertising policies and guidelines, all rules and regulations issued by the Advertising Standards Council of India (“ASCI”) and other applicable industry and self-regulatory bodies, and Applicable Laws.
2.4. If, in Novi’s reasonable opinion, the Advertising Creatives do not pass such checks, Novi may at its sole discretion either reject the Advertising Creative or require the Client to provide a revised Advertising Creative within a specified timeline. If the revised Advertising Creatives do not pass the tests set out in this Clause 2 or the Client does not provide the revised Advertising Creative(s) within the specified timeline, or the Client / Advertising Creative is subject to any order or direction from the Ministry of Information and Broadcasting or the ASCI in relation to the Client’s advertisements at any time during the Campaign Period, Novi shall have the right to cancel the Campaign for the respective Advertising Creative without incurring any liability, and in such instances, the Terms will terminate in respective of such Campaign. The parties agree that Novi shall not be required to refund any amounts that may have been paid by the Client in such instances. For the avoidance, the Client will continue to remain liable for any Campaigns booked but not consumed, including for any payment obligations, in accordance with the Terms.
TRACKING AND REPORTING:
3.1. Novi shall generate reports through the use of Novi Tracking Technologies (“Reports”) that set out parameters for the successful delivery of Ad Impressions, attribution to User Actions, and payments that arise out of Campaigns. The parties agree that the Reports shall be final and binding, and Novi shall raise invoices for its fees on the basis of such Reports.
3.2. Where applicable (i.e. CPI or CPCV), the Client shall be required to install the applicable Novi Tracking Technologies on the landing page linked to each Advertisement Creative. In this regard, Novi grants the Client a limited, revocable, and non-transferable licence to use the Novi Tracking Technologies solely for the purposes of these Terms. If the Client removes or manipulates any Novi Tracking Technology in any manner without Novi’s prior written permission, Novi may suspend the Entitlements and/or terminate these Terms and the Ad Sales Proposal. In addition, the Client agrees to pay Novi for each day during which the Novi Tracking Technology was removed or manipulated. Such payments shall be based on the average daily conversion measurements (such as daily click counts or conversions) in the 7 day period prior to such removal or manipulation.
3.3. The Client may verify the Ad Impressions specified in the Report with a supported Measurement Partner within 15 days of the date of the Report. The Client shall be responsible for ensuring that the results of such verification, if any, are issued within this 15-day period.
3.4. If a discrepancy between the number of Ad Impressions specified in the Report and the report of the Measurement Partner is:
(a) up to 20%, the parties shall disregard such discrepancy;
(b) greater than 20%, Novi, the Client, and Measurement Partner shall jointly investigate such discrepancy. If the investigation determines that such discrepancy is due to factors beyond Novi’s reasonable control, the parties shall disregard such discrepancy. If the discrepancy is directly attributable to Novi, (A) discrepancies up to 20% (“Excluded Discrepancy”) shall be disregarded and (B) discrepancies above the Excluded Discrepancy shall be mutually resolved by the parties.
3.5. The Client hereby warrants that it shall, at all times while (a) using or otherwise accessing Novi Tracking Technologies and/or (b) collecting or processing personal data of end users or viewers of Campaigns (“End User Information”), comply with Novi’s Requirements for Use of Novi Tracking Technologies, available here. The parties agree that any breach of such requirements shall be deemed to be a material breach of these Terms.
PAYMENTS:
4.1. While Novi raises invoices at the end of each calendar month, it reserves the right to modify schedules and frequencies for billings. All invoices shall be generated on the basis of Reports (where such invoices are in respect of Campaigns) and shall indicate Advertising Fees, fees for development of Branded Content (where applicable), applicable taxes, and Entitlements consumed. Invoices may be generated in any format. Novi shall have the right to require advance payments in respect of any of the Services.
4.2. The Client shall clear all invoices within 60 (Sixty) days of the date of issue, unless otherwise specified by Novi (and in such instances, the Client shall not claim credits for such days). If the Client is affiliated with the Advertising Agencies Association of India and the Internet and Mobile Association of India, it may, subject to Novi’s prior approval, clear invoices within timelines prescribed by such bodies. Any delay in payments shall be subject to an interest of 1.5% for each month or part thereof during which the payment remains delayed, and which shall be calculated from the date the undisputed payment becomes due until the recovery is made in full, with interest.
4.3. The Client shall make all payments by Wire Transfer (RTGS/NEFT) on A/c No.- 0599969001 : IFSC No – DEUT0784BBYor Account Payee Cheque payable at par drawn in the name of “Novi Digital Entertainment Private Limited”, or in any such manner as may be prescribed by Novi from time to time.
4.4. The Client agrees that any delayed payments or any dishonour of cheques issued by it for and towards amounts payable to Novi shall constitute a breach of these Terms. In such instances and in addition to its other rights hereunder, Novi reserves the right to refuse to publish the Client’s advertisements, suspend existing Campaigns, cancel existing release instructions, demand advance payments for future advertisements, or take any other action that it may deem appropriate at its sole discretion.
4.5. Without prejudice to Clause 4.4 or its other rights or remedies, in the event of a dishonour of any cheque(s), Novi may at its discretion require the Client to pay amounts in lieu of any dishonoured cheque by way of a bank draft, pay order, direct debit, wire transfer (RTGS/NEFT), or manager’s cheque, payable at par immediately upon receipt of notice in this regard from Novi. Novi’s acceptance of such amounts shall not amount to a waiver, acquiescence, or estoppel on Novi’s part.
4.6. Upon request from Novi, the Client agrees to provide Novi with a post-dated cheque in favour of Novi of an amount equal to the Advertising Fees (including applicable taxes such as GST less withholding taxes) (“Security”) to secure its payment obligation hereunder. Novi agrees and undertakes that it shall not encash or otherwise exercise the Security unless Client fails to pay amounts of the Advertising Fee due and payable under these Terms. If Novi encashes such Security, it agrees to utilise the proceeds of such encashment towards undisputed amounts of Advertising Fees and interest thereon and remit the remainder of the proceeds to the Client. Upon (a) the completion of the Campaign and the full payment of Advertising Fees to Novi or (b) termination of these Terms by the Client due to a material breach attributable to Novi, Novi agrees and undertakes to return the Security to the Client.
4.7. No deductions shall be made by the Client while settling invoices, and no set-offs shall be permitted. If the Client fails to raise a dispute in respect of an invoice within three (3) weeks from the date of the invoice or the end of the relevant activity month (whichever is later), the invoice shall be deemed to be accepted by the Client. Thereafter, Novi shall not participate in or otherwise entertain any dispute.
4.8. Each party shall be responsible for the payment of its own income tax. The Client shall make all payments to Novi net of applicable withholding tax deduction (‘TDS’) as per the Applicable Laws only against specific invoices quoting the relevant invoice number, date, and amount. Novi reserves the right to adjust on-account payments at its sole discretion without any prior notice to the Client. In case payments made under this Agreement are liable for withholding tax deduction as per the Applicable Laws, the Client acknowledges and agrees to (i) (a) deduct and deposit such TDS with the appropriate government authority, (b) issue the TDS certificates evidencing such withholding tax deduction, and (c) file TDS return so that the credit of TDS is correctly reflected in Novi’s 26AS Form within timelines prescribed under Applicable Laws. Where required, the Client shall promptly provide details of invoices that are included in its quarterly TDS returns as well as particulars of any provisions considered in such quarterly TDS return in order to enable Novi to correctly claim its TDS credit for that year. If Novi is denied TDS credits for the taxes withheld by the Client due to any reason attributable to the Client and the same remains unrectified within the time prescribed by Applicable Laws, the Client agrees to reimburse Novi for such loss, claim, or liability arising to Novi within 30 days of Novi informing the Client in writing (along with the proof of claims made by tax authorities of denial of TDS credits). In case a lower or nil TDS deduction certificate is furnished by Novi to the Client, the Client shall be obliged to deduct the withholding taxes at such lower rate or nil rate as prescribed in the certificate.
4.9. The Client shall pay applicable GST and all other applicable taxes, duties, and levies. For levying GST, the Client shall be deemed to be the recipient of Services provided under these Terms (and in the absence of a client that is marked out in the Ad Sales Proposal, the advertiser specified in the Ad Sales Proposal shall be deemed to be the recipient of Services). The Client shall inform Novi in writing of its Place of Supply, GSTIN, registered address under GST, and any specific exemption from GST. Once such details are provided, Novi shall not accept any changes to these aspects. Separately, Novi shall inform the Client of any changes to its relevant Place of Business and GSTIN.
4.10. If Novi agrees to issue a credit note to the Client, the Client shall ensure that the corresponding credit of GST availed (if any) is reversed in its GST return within 30 days from date of issuance of credit note, and proof of reversal shall be promptly provided to Novi.
4.11. Novi shall, at its sole discretion, undertake cost allocation of the Advertising Fee between Ad Units, Ad Placements, Ad Impressions, and User Action (“Cost Allocation”), while ensuring that the total Entitlements remain intact. Novi may change this Cost Allocation at its sole discretion. In the event of any such change, Novi shall promptly share the revised Cost Allocation with the Client, and the Client undertakes to be bound by such revised Cost Allocation.
4.12. The Client further agrees that (a) Cost Allocation between Entitlements and value adds or bonuses for the Client shall be at Novi’s sole discretion, and (b) Novi may, at its sole discretion, allocate the entire billing amount, in the invoice to be raised, towards the Entitlements prior to or in place of any value adds or bonus.
4.13. Time is of essence with respect to the payment obligations hereunder.
4.14. In case of advance payments, Novi shall charge applicable GST as per the information provided by the Client. Novi shall upload the requisite details of the invoice (generated as per the information provided by the Client) within the statutory timelines, on the GSTN platform, to enable the Client to avail credit thereof.
4.15. Novi reserves its right to revise the rates at its sole discretion during the subsistence of these Terms.
4.16. All amounts and monies referred to in these Terms, including payments for Branded Content Services, are non-cancellable and non-refundable.
4.17. Branded Content
The consideration for any Branded Content Services provided hereunder, and payment schedules thereto, shall be set out in the Ad Sales Proposal.
INTELLECTUAL PROPERTY RIGHTS:
5.1. The Client hereby grants Novi a non-exclusive, worldwide, and royalty free licence to:
(a) use, copy, distribute, sub-license, display, transmit, review, reproduce, store, archive, optimise, render into audible or other technical formats, host, and archive Advertising Creatives solely for resizing and/or reformatting the Advertising Creative(s) to address delivery on Platform/other devices. Any other use of such Advertising Creatives by Novi shall be subject to the Client’s approval; and
(b) use its logos, trade names, trademarks, and other material purposes of brand integrations, in-show placements, creating and developing advertising, marketing, and promotional content in connection with the Entitlements and in Novi’s advertising sales and marketing materials and for the purposes of fulfilling any other obligations under these Terms.
5.2. For any content that relates to the advertised product or service (other than the Advertising Creative(s)) (“Content”) that the Client seeks to make available on the Platform, the Client hereby grant to Novi a non-exclusive, transferrable, sub-licensable, perpetual, royalty-free right, and worldwide right to:
(a) use, reproduce, copy, exhibit, make available, broadcast, communicate to the public, promote, distribute, dub, subtitle, and/or otherwise exploit the Content, by way of streaming and/or downloading;
(b) alter, modify, or delete any portion of any of the Content, inter alia, to (i) comply with Applicable Laws, or (ii) insert stickers;
(c) use the Content or parts thereof to promote the Platform and various features available through the Platform through all modes and mediums;
(d) combine clips from the Content with any other content (“Combined Content”);
(e) make available the Content and Combined Content to users of the social feed on the Platform that enables such users to post the Combined Content on any third party platform.
5.3. The rights granted to Novi hereunder shall collectively be referred to as “Rights”. The Client agrees to deliver the Content and all the materials related to the Content in the manner and form required by Novi subject to technical specifications as specified by Novi. For the avoidance of doubt, nothing hereunder imposes any obligation on Novi to utilise, distribute, or exhibit the Content.
5.4. The parties agree that Section 19(4) read with Section 30(A) of the Copyright Act, 1957 (as amended from time to time) shall not apply any rights granted to Novi under these Terms.
5.5. All rights, title, and interest in and to the Platform and Services, including all intellectual property rights arising out of the Platform and Services, are owned by or otherwise licensed to Novi. Except as stated in these Terms, nothing hereunder should be construed as conferring any right in or licence to Novi’s or any third party’s intellectual property rights (including the right to use the image of any player, celebrity, or Property) except as expressly agreed upon between the Parties.
REPRESENTATIONS AND WARRANTIES:
6.1. Mutual
Each party represents and warrant that:
(a) it is duly organised, validly existing, and in good standing under Applicable Laws;
(b) it has the full right, power, and authority, to enter into these Terms and perform its obligations, and grant the rights, licences, authorisations, and consents it grants or is required to grant under these Terms.
6.2. The Client represents and warrants that:
(a) it has the right to grant the rights it grants under these Terms, including but not limited to the rights granted under Clause 5;
(b) it will make payment of Advertising Fees, and any other monies to Novi in accordance with the payment terms specified under these Terms;
(c) it shall not make any statement or act in any manner which, in the reasonable opinion of Novi, may bring the reputation of Novi, Licensors, any officer, director, or member thereof, any Property, or any Property’s commercial partners or sponsors, or the sport relating to Property, into disrepute;
(d) the Client, its shareholders, promoters, directors, and key managerial personnel and partners do not, and shall not, have any conflict of interest in terms of the Board of Control for Cricket in India’s Conflict of Interest Rules and the Client is not any manner associated with or related to the Board of Control for Cricket in India (“BCCI”), the Indian Premier League governing council, or any of the BCCI’s full members, associate members, affiliate members, or any of their officials. The “BCCI Conflict of Interest Rules” mean the BCCI Rules on Conflict of Interest as may be amended, revised, updated, or substituted by the BCCI from time to time. If, during a Campaign Period, (i) the Client becomes aware of any such conflict of interest, the Client shall promptly notify Novi in writing or (ii) if Novi becomes aware of any such conflict of interest, Novi may notify the Client in writing. In any case, the Client shall procure necessary approvals (if required) under the BCCI Conflict of Interest Rules and shall provide a copy to Novi;
(e) it complies with the United States Foreign Corrupt Practices Act, 1977 and any amendments thereto (and any local or foreign equivalent, including Applicable Laws), and the UK Bribery Act, 2010;
(f) it complies with all applicable sanctions and export control laws, including those of the United States and that of India;
(g) upon request, it shall promptly provide Novi with (i) access to its internal records and systems to permit Novi to monitor the volume of User Actions generated through the Campaign(s) and (ii) any information reasonably required for Novi to determine the Client’s compliance with these Terms.
6.3. Advertising Creative
(a) The Client hereby represents and warrants that all Advertising Creatives (and any trademarks, logos, or other material provided by the Client to Novi under the Terms) shall (a) be original, (b) not infringe any third party rights (including intellectual property rights), (c) not be obscene, blasphemous, libellous, defamatory, against public interest or public sentiment, or tantamount to unfair, monopolistic, or restrictive trade practices, and (d) comply with all Applicable Laws.
(b) The Client further represents and warrants that:
(i) it has obtained and paid for all necessary consents, licences, and permissions for the inclusion of all audio-visual material in the Advertising Creative(s) and the transmission of the Advertising Creative(s);
(ii) it shall be solely responsible for the payment of all amounts due in respect of Advertising Creatives and Campaign, including but not limited to royalties and payments due to copyright collective societies;
(iii) if it uses any Property-related player, team, or coach within the Advertising Creative, it has sought all necessary consents, licences, and waivers for the exhibition and transmissions of such Advertising Creative;
(iv) any communication of an Advertising Creative to the public shall be deemed to have been undertaken by the Client at whose instance Novi broadcasts or exhibits such Advertising Creative;
(v) any use by Novi of the Advertising Creatives in the manner described hereunder shall not infringe any third party rights; and
(vi) the Advertising Creative shall not cause a risk to Novi’s reputation or result in any notices or adverse directions orders being issued to Novi.
6.4. If the Client submits Advertising Creatives for the purpose of advertising Games or Virtual Digital Assets or Brand Extensions, it shall ensure that it complies with Novi’s Advertising Policy on Games, Virtual Digital Assets and Brand Extensions, available here.
6.5. (a) In the event the Client’s Advertising Creative(s) features any electoral messaging, the Client represents and warrants that (i) all statements/claims made within the Advertising Creative(s) are factually correct and the Client will remain liable for all third party claims in relation to the Advertising Creative(s); (ii) the Advertising Creative(s) have been duly pre-certified by the Election Commission of India (“ECI”) and have been cleared to play throughout the territory of India; (iii) the Advertising Creative(s) and the transactions contemplated under this Agreement have been duly authorized by the applicable candidate or political party featuring in the respective Advertising Creative(s); and (iv) the Client has disclosed its expenditure on the advertising sales transaction under this Agreement to the ECI.
(b) In the event the Client’s Advertising Creative(s) does not feature any electoral messaging, the Client represents and warrants that (i) all statements/claims made within the Advertising Creative(s) are factually correct and the Client will remain liable for all third party claims in relation to the Advertising Creative(s); (ii) the Client has not applied for pre-certification by the ECI, nor has the Advertising Creative(s) been rejected pre-certification by the ECI; and (iv) the Advertising Creative(s) do not constitute an advertisement which needs to comply with electoral regulations, including requiring pre-certification by the ECI.
6.6. Contents and Rights
The Client hereby represents and warrants that:
(a) it is not under any disability, restriction, or prohibition, whether legal, contractual, or otherwise that prevents the Client from granting the Rights to Novi;
(b) there is no present or prospective claim, proceeding, or litigation in respect of the Content, Rights, or any parts thereof that may in any manner impair, limit, inhibit, diminish, or infringe upon any or all of the Rights or obstruct Novi’s undisturbed enjoyment of the Rights by Novi;
(c) it is the sole and exclusive owner of the Content and all underlying works therein;
(d) it has procured all necessary and requisite approvals, consents, authorisations, and/or licences in respect of the Content, including releases, waivers, permissions, and assignments from the talent appearing in the Content;
(e) Novi is not and shall not be required to procure any permissions, authorisation, consents, or licences or make any payments to any third parties to utilise the Rights;
(f) Novi is not responsible for:
(i) the payment of any statutory royalties accruing to any person due to the exploitation of the Content or parts thereof, or
(ii) procuring any music licences or authorisations including any performance licences in respect of any musical works incorporated in the Content or any part thereof;
(g) the Content and all parts thereof will be original, will not be obscene, blasphemous, or defamatory, will not be in contravention of Applicable Laws, and will not infringe the rights of any third parties.
ENTITLEMENTS:
7.1. Geo-Blocking
Novi shall have the sole right to geo-block certain Ad Placements and/or Advertising Creative(s) in accordance with its internal policies or otherwise in accordance with Applicable Laws.
7.2. Changes
(a) Novi shall have the sole right to determine changes to the delivery schedule of Entitlements in the event of delays, cancellations, reduction in the duration of, or any other changes to Properties. Among other reasons, such situations may occur, for example, due to changes in live events underlying a Property, a change in Novi’s rights to a Property, a change in Applicable Law, or a force majeure event. In certain instances, a Licensor may prevent or otherwise restrict a Campaign from being connected with such Property. This may occur, for example, if the Client and Licensor (or any of its official or title sponsors in respect of the Property) are engaged in the same primary product category or are otherwise competitors. The parties agree that the foregoing examples are purely illustrative, and that changes to Entitlements or Properties may occur due to several non-exhaustive reasons.
(b) Novi shall have the sole right to determine the constitution of a “change” to a Property for the purposes of this Clause 7.2. While Novi shall use reasonable efforts to inform the Client of changes to Properties and Entitlement, no confirmation or consent from the Client will be required for Novi to exercise its rights under this Clause. Notwithstanding the foregoing, in certain instances, the Client agrees and acknowledges that Novi may contractually or statutorily be restricted from disclosing details of changes to Properties.
(c) In such instances, Novi may, at its sole and reasonable discretion, exercise the following options:
(i) book Entitlements on alternative Properties of the same or similar nature or on any alternative digital platform that it owns or operates or is otherwise owned or operated by Novi’s affiliates; or
(ii) offer the Client with the ability to utilise different Entitlements on other Properties (subject to availability); or
(iii) suspend or cancel the Campaign.
(d) Where Novi exercises its rights under Clauses 7.2(c)(i) and 7.2(c)(ii), the Client agrees and acknowledges that it shall not be entitled to any refunds, and payments will be due to Novi in respect of the utilisation of Entitlements on different Properties. In instances where Novi cancels Campaigns, the Client shall be liable to pay fees only in respect of Entitlements that have been consumed until the date of cancellation, and the Terms shall terminate in respect of such Campaign.
(e) If a change in Applicable Law impacts the Services but does not prevent its provision, Novi may, at its sole discretion, exercise its rights under Clause 7.2(c). If Novi chooses not to exercise such rights, the parties may in good faith engage in a renegotiation of the commercial terms set out in the respective Ad Sales Proposal. These Terms and the provision of the respective Ad Sales Proposal shall continue to subsist during such negotiation period.
(f) Once booked, the Client shall not be permitted to cancel a Campaign.
(g) The parties agree that Novi’s failure to execute a Campaign under this Clause 7.2 shall not constitute a breach of these Terms, and the Client expressly waives its remedies (whether in law, contract, equity, or otherwise) in this regard, whether in the form of specific performance, a right to claim damages or compensation, or otherwise.
7.3. Extensions of Campaign Periods
If, upon the expiry of the Campaign Period, the Client seeks additional Entitlements that are agreed upon by Novi, the Campaign Period shall be deemed to be extended to include the utilisation of such additional Entitlements, and the Ad Sales Proposal shall be deemed to be extended to include such revisions and extensions.
7.4. Third Party Relationships
The parties agree that the Entitlements shall, at all times, be subject to guidelines, rules, regulations, and terms issued by or otherwise imposed upon Novi by Licensors. Except for the terms of Entitlements specified under the Ad Sales Proposal and any rights separately and expressly agreed upon between the Client and Licensor(s)), the Client shall not make or imply, whether directly or indirectly, any association between itself and the Licensor(s) or any Properties made available by Licensor(s) or Novi.
7.5. The Client agrees that if it fails to issue any release order, (a) any act or omission by Novi arising out of the Client’s failure shall not be deemed to be a breach by Novi of these Terms, and (b) such failure will not impair the ability of the Client to fulfil any of its obligations under these Terms, including any payment obligations for the Entitlements booked.
INDEMNIFICATION:
The Client shall indemnify and hold harmless Novi, its affiliates, agents, officers, and users against all actions, disputes, litigation, judicial and quasi-judicial orders, claims, cost, losses (including any reputation loss), penalties and any liabilities whatsoever, arising out of or in connection with (a) any actual or suspected breach by or attributable to the Client of these Terms, including any actions brought by any third party for the infringement of intellectual property rights or other proprietary rights arising out of the use, possession, recording, transmission, or broadcasting of any Advertising Creative(s), Campaigns, or any other material, content, and documents provided by the Client hereunder, and (b) gross negligence or wilful misconduct.
DISCLAIMERS AND LIABILITIES :
9.1. Novi does not make any warranty, whether express or implied, with respect to any matter, including without limitation advertising and other Services, and expressly disclaims the warranties or conditions of noninfringement, merchantability and fitness for any particular purpose. Novi does not warrant that its provisions of Services and/or the availability of the Platform will be error-free, uninterrupted, or continuous.
9.2. In no event shall Novi be liable under these Terms for any consequential, special, indirect, exemplary, punitive, or other damages, including but not limited to damages for loss of data, lost profits, loss of business, or procurement of substitute goods or services, whether based in contract, tort (including negligence), or otherwise, even if Novi has been advised of the possibility of such damages.
9.3. Novi’s aggregate liability under these terms for any claim is limited to the total amount received by Novi from the Client under the relevant Ad Services Proposal giving rise to the claim.
TERM; SUSPENSION AND TERMINATION:
10.1. The Terms shall be valid for such period specified in the Ad Sales Proposal, unless terminated in accordance with the other provisions hereunder.
10.2. The Terms may be terminated by Novi without cause upon 15 days’ prior written notice to the Client
10.3. Novi may terminate these Terms immediately with written notice upon the occurrence of any of the following events:
(a) subject to Novi’s rights and remedies hereunder, the Client’s non-payment of amounts hereunder;
(b) a breach by the Client of its obligations, representations, or warranties under these Terms, or under Applicable Laws;
(c) the Client is subject to any order or direction from the Ministry of Information and Broadcasting or the ASCI in relation to the Client’s advertisements.
(d) if the Client acts in any manner that, at Novi’s discretion, may prejudice the goodwill or image of Novi or its affiliates; or
(e) the Client ceases to function as a going concern or an initiation against the Client or the issuance of an order against the Client for voluntary or involuntary bankruptcy or winding up proceedings, suspension of payments, creditors arrangement, attachment of any of its assets, appointment of any trustee, receiver, liquidator, judicial manager, administrator, or similar official taking over any assets or such similar proceedings.
10.4. Prior to the exercise of its rights under Clause 10.3, Novi may, in good faith, and where practical or applicable, provide the Client with cure periods to rectify or cure the events that give rise to Novi’s termination right. During such cure period, Novi shall temporarily suspend its obligations under these Terms. If the event remains uncured, at Novi’s reasonable discretion, upon the expiry of such cure period, Novi may terminate these Terms immediately. For the avoidance of doubt, in the event Novi suspends its obligations under this Agreement, the Client’s payment obligations under these Terms will continue to subsist.
10.5. The Client may terminate these Terms with written notice a material breach of these Terms by Novi; provided that where such breach is curable, the Client shall provide Novi with a cure period of 10 (Ten) days before exercising its termination right under this clause.
10.6. Rights and Obligations upon Expiry or Termination:
(a) All outstanding payments receivable by Novi from the Client shall become immediately due and payable on the date of expiration or termination of these Terms and shall be paid by the Client within 30 days thereof.
(b) Notwithstanding anything to the contrary herein, the termination of these Terms shall not relieve or release the Client from making payments which may be owed to Novi under these Terms or other obligations having accrued under these Terms prior to their termination.
(c) Rights and obligations under these Terms, including in relation to provisions related to ownership, representations, warranties, indemnities, confidentiality, and consequences of termination, which by their nature should survive or are expressly so stated herein shall remain in full force and effect to the extent so specified, notwithstanding any expiry or termination.
OTHER TERMS :
11.1. Confidentiality:
The parties agree to keep confidential all information exchanged during the course of their business dealings (including, but not limited to Entitlements booked, rates, costs, etc.) and to use such information solely for the purposes of these Terms. These confidentiality obligations shall not apply if such information is already in public domain (without default on the part of the recipient) or is required to be disclosed under any Applicable Laws. In case of disclosures mandated by Applicable Laws, the recipient agrees to provide the disclosing party with notice of such requirement and assist the disclosing party with obtaining injunctive relief to prevent disclosure. If Novi has offered particular rates to the Client, and Novi becomes aware that such information has been shared with any third party, Novi shall be entitled to immediately terminate these Terms with written notice and, in the event of termination under this Clause, the Client shall immediately pay the Advertising Fee in full. Notwithstanding the foregoing, Novi shall be entitled to seek compensation from the Client or avail any other relief provided by law or equity. Each party shall at all times be fully responsible for compliance with and breach of these confidentiality obligations by its employees, agents, representatives, consultants, and contractors.
11.2. Modifications:
Novi reserves the right at any time to modify these Terms and to add new or additional terms or conditions for use of the Services (including URLs referenced in these Terms and the content within such URLs). Novi may also modify URLs referenced in the Ad Sales Proposal and the content within such URLs from time to time. Any modifications to these Terms or the URLs referred to in this Agreement will be available at the relevant URL (or a different URL that Novi may provide from time to time). Any use of the Services after the modification or addition to these Terms shall be deemed to be acceptance of such modified or additional terms. For the avoidance of doubt, changes, modifications or additions to these Terms (including changes to the content within the URLs) will not apply retroactively and will become effective only for future Campaigns, after the Terms are posted, except that changes to URL references will be effective immediately. Notwithstanding the foregoing sentence, in an event where the Terms have undergone a revision due to a change in Applicable Laws, the revised Terms shall apply to all Ad Sales Proposals, regardless of whether they were executed on or before the date of revision.
11.3. Severability:
If any provision of these Terms is determined by any court or other competent authority to be unlawful or unenforceable, the other provisions of these Terms will continue in effect. If any unlawful or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the clause, in which case the entirety of the relevant provision will be deemed to be deleted).
11.4. Assignment:
The Client shall not license, sell, transfer, or assign its rights, obligations, or covenants under these Terms in any manner without Novi’s prior written consent. Novi may grant or withhold this consent in its sole discretion and subject to any conditions it deems appropriate. Novi may assign its rights to any of its affiliates, any successor in interest of any business associated with the Services, or any third party without any prior notice to the Client.
11.5. Notices:
All notices, requests, demands, and determinations for Novi under these Terms (other than routine operational communications) shall be sent to legal@hotstar.com.
11.6. Third Party Rights:
No third party shall have any rights to enforce any terms contained herein.
11.7. Entire agreement:
These Terms, together with the Ad Sales Proposal, contain the entire agreement and understanding among the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements, understandings, inducements, and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.
11.8. Waiver:
Novi’s failure to enforce at any time or for any period of time the provisions hereof in accordance with its terms shall not be construed to be a waiver of such provisions or of the rights of Novi thereafter to enforce each and such provision. A waiver shall not be valid and effective unless the same is in writing.
11.9. Relationship between Parties:
Nothing within these Terms is intended to or shall be deemed to create a relationship of partnership, agency, joint venture, joint enterprise, or fiduciary relationship between the parties, and neither party shall have the authority to contract for, or enter into, any commitments for or on behalf of the other.
11.10. Governing Law and Dispute Resolution:
(a) These Terms shall be governed by and construed in accordance with the laws of India. Subject to the following provisions, the courts of Mumbai or New Delhi shall have exclusive jurisdiction in connection with any disputes arising out of or in connection with these Terms.
(b) Any controversies, conflicts, disputes, or differences between the parties shall be resolved by arbitration in Mumbai or Delhi in accordance with the Arbitration and Conciliation Act, 1996 for the time being in force, the rules of which are deemed to be incorporated by reference in this clause. The tribunal shall consist of 1 arbitrator mutually appointed by the parties. The language of the arbitration shall be English.
(c) The parties shall keep the arbitration confidential and not disclose to any person, other than those necessary to the proceedings, any information, transcripts, or award unless required to do so by law. The decision of the arbitrator shall be final and binding.
(d) Each party shall bear its own costs with respect to any dispute.
11.10. Force Majeure:
Neither party shall have any liability to the other party under these Terms if it is totally or partially prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, strikes, lock-outs or other industrial disputes (whether involving the workforce of Novi or any other party), failure of a utility service or telecommunications network, act of God, war, riot, civil commotion, pandemics or epidemics including the covid-19 pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery, fire, flood, storm or default of suppliers or sub-contractors, and such prevention, delay or non-performance shall not amount to a breach of these Terms. For the avoidance of doubt, the Client shall not be released from its obligation to pay any monies to Novi, including the Advertising Fees, in any event. Notwithstanding the foregoing, to the extent that Novi has published the Entitlements or has not conveyed an inability to do so on account of such acts, events, omissions or accidents beyond its reasonable control, the Client shall not be released from any obligation to pay any portion of the Advertising Fee relating to such Entitlements on the due dates specified in or in accordance with these Terms and shall not be entitled to seek refund of any portion of the Advertising Fee already paid. The Client acknowledges and agrees that it is entering into the Terms during the covid-19 pandemic and that (a) the Client shall not be prevented from performing its obligations under these Terms on account of the covid-19 pandemic and (b) Novi may be unable to publish the Entitlements on account of the covid-19 pandemic.
Schedule 1 – Definitions and Interpretation
- Definitions:
The terms below shall have the following meaning ascribed to them:
(a) “Applicable Laws” shall include any applicable laws, statutes, directives, ordinances, treaties, contracts, rules, regulations, guidelines, orders, or self-regulatory codes of conduct including the rules and regulations issued by ASCI.
(b) “Agency” means a person, firm or company whose business involves the selection and purchase of advertising space or slots for persons wishing to advertise and who will be jointly and severally responsible with the Advertiser for payment of the Advertising Fee under this Agreement;
(c) “Advertiser” means a person, firm, company or any other organization whose products, goods or services are the subject matter of the Advertising Creative(s) and who will be jointly and severally responsible with the Agency, if any, for payment of the Advertising Fee under this Agreement;
(d) “Advertising Specifications Document” means the advertising specification document that describes the available Ad Units on the Platform in respect of the Campaign Period and that is issued by Novi prior to the commencement of these Terms.
(e) “Ad Impression” means each occurrence of an Advertising Creative or Ad Unit being displayed to a user.
(f) “Ad Placement” means the placement of an Ad Unit in a particular position on the Platform.
(g) “Ad Unit” shall mean the advertising units on the Platform, defined by its size and format and identified within the Ad Sales Proposal.
(h) “Advertising Fee” shall mean the consideration agreed to be paid by Client to Novi as set out in the Ad Sales Proposal, including (i) any amount calculated on the basis of the CPMs of the Advertising Creative or Ad Unit which is served and displayed to users, and/or (ii) any amount calculated on the basis of CPCs, CPIs, or CPLs (as defined in the Policy for Variable Costs Campaigns, available here ) in connection with relevant User Actions.
(i) “Campaign” shall mean each promotional or advertisement set or campaign that involves the display of Advertising Creative(s) on the Platform.
(j) “Campaign Period” shall mean the period of the Campaign specified in the Ad Sales Proposal during which the Entitlements are proposed to be consumed by the Client.
(k) “Client” means jointly and severally the Advertiser and the Agency, if any.
(k) “GST” shall include the Central Goods and Services Tax ( “CGST” ), the State Goods and Services Tax ( “SGST” ), and the Integrated Goods and Services Tax ( “IGST” ) as may be applicable and all applicable cesses, duties, and levies, as amended.
(m) “GSTN” means Goods and Service Tax Network made available under Indian tax laws.
(n) “Licensor” means entities or persons from which Novi or its affiliates have procured media rights, rights, or licences to stream content on the Platform, and shall include, without limitation, the BCCI, Asia Cricket Council, International Cricket Council, England and Wales Cricket Board Limited, the Tamil Nadu Cricket Association, and any other sporting body, board, or entity from which Novi or its affiliates have procured media rights, rights, or licences to stream or make available any content on the Platform.
(o) “Novi Tracking Technologies” include cookies, ad-tags, web beacons, pixels, tracking pixels, and other tracking and storage technologies provided by Novi or third parties authorised by Novi.
(p) “Personal Data” means any information relating to an identified or identifiable natural person.
(q) “Place of Business” shall have the meaning ascribed to it under applicable GST legislations.
(r) “Place of Supply” shall have the meaning ascribed to it under applicable GST legislations.
(s) “Platform” includes the website owned and operated by Novi and currently available at www.hotstar.com and the mobile application owned and operated by Novi and currently known as Disney+Hotstar.
(t) “Supported Attribution Partners” mean the third parties set out in Schedule 3 .
(u) “Supported Measurement Partners” mean the third parties set out in Schedule 2. .
(v) “User Action” means the defined action undertaken by a user on the Platform, including the generation of a lead, installation, click, sale, download, or registration, as defined in the Ad Sales Proposal.
- Interpretation:
(a) Words and expressions used under these Terms but not specifically defined in this Schedule shall have the same meaning assigned to them in the specific Clause.
(b) References to the word ‘include’ shall be construed without limitation, unless specified otherwise.
(c) Any reference to writing, “agreed upon by the parties”, or “agreed upon between the parties” shall include email.
(d) Any obligations, covenants or conditions, representations, or warranties of the Client under these Terms shall be construed as the obligations, covenants or conditions, representations, or warranties of the Agency, and Advertiser (as applicable) specified within the Ad Sales Proposal on a joint and several basis.
(e) Any references to statutory, regulatory, or self-regulatory provisions under these Terms shall include references to any amendments, modifications, re-enactments, or consolidation.
Schedule 2 – Supported Measurement Partners
| S. No. | Ad-tech Partner | Measurement Supported | Applicable Ad-format |
| 1 | Sizmek | Clicks, Impressions | Video, Native display, Billboard |
| 2 | Nielsen DAR | Demo accuracy | Video – non live |
| 3 | MOAT | Viewablity and In-valid traffic | Video – non live |
| 4 | Innovid | Impressions, Clicks | Video, Native display, Billboard |
| 5 | DCM | Impressions, Clicks | Video, Native display, Billboard |
Schedule 3 – Supported Attribution Partners
| S. No. | Partner |
| 1 | Appsflyer |
| 2 | Branch |
| 3 | Singular |
| 4 | Vserv for Offline attribution |
To see the previous version of these terms please click here
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