1.1 License: The Content Provider agrees to and hereby grants to Comviva an unlimited usage license in relation to the specified rights and royalty free basis for sub-licensing through digital distribution, transmission, broadcasting of the Content, with edit and meta tagging rights throughout the Territory, irrevocable during the Term of this Agreement, either through Customer(s) on B2B basis or on its own to Subscribers on B2C basis, on all mobile or cellular communication or other portable, handheld or other like devices with all ancillary rights including but not limited to rights of metadata, artwork, photos and imagery of the artist / author /publisher of the Content in relation to distribution and promotion of the Content.
1.2 The Content Provider hereby grants Comviva and its Customer(s) / User(s) a non-exclusive, sub-licensable limited license to use the Content Provider Marks, including, without limitation, trademarks, logos, service marks of the Content Provider, Content, Content Services, solely for the purposes of exercising the rights granted under this Agreement including the marketing and the promotion of the Content and Content Services for the Term and in the Territory as agreed. Comviva acknowledges and agrees that the right to use Content Provider Marks granted under this clause does not confer any rights of ownership in such Content Provider Marks to Comviva or Customer(s) / User(s)and that such rights together with all goodwill associated with them are and will remain at all times the exclusive property of Content Provider.
2.1 Unless otherwise specifically agreed between the Parties, in consideration for the supply and delivery of the Content and Content Services, and the performance of all obligations of Content Provider in this Agreement, Comviva will pay Content Provider such fee or specified share (the .Revenue Share.) from the revenue as set out in Annexure-C of agreement draft.Comviva will pay all undisputed invoices within thirty (30) days:
a. from the receipt of the payments from the Customer in case of B2B; and
b. from the receipt of the payments from the Third Party Payment gateway in case of B2C.
2.2 Taxes: The Revenue Share percentage payable to Content Provider under this Agreement shall be inclusive of all applicable taxes in the Territory including, but not limited to,indirect taxes such asservice tax, VAT, GST or any other such taxes by any other name whatsoever and direct taxes such as withholding taxes or any other such taxes by any other name whatsoever.
2.3 Withholding Taxes: The ComvivaAffiliate /subsidiary / branch in the relevant country shall be allowed to deduct withholding taxes on Content Provider.s invoices as per the prevailing laws of the country establishment of the particular Comviva country Affiliate /subsidiary.. To the extent required / feasible, the ComvivaAffiliate / subsidiary / branch office shall provide Content Provider with a tax withholding certificate for the deductions made to enable Content Provider to file for tax credit in Content Provider.s country of establishment.
3.1 Warranties and exclusive remedies: Content Provider warrants that:
a. it will provide the Content Services in a professional manner;
b. the Content andContent Services will be provided in accordance with SLAs;
c. the Content provided by Content Provider pursuant to this Agreement is accurate and authenticated;and
d. the Content Provider is the sole copyright owner/licensor/holder of the Content and/or has the requisite rights to grant the rights and license granted herein, and has all rights and authority to execute this Agreement and shall be responsible for any and all claims/losses/disputes/suits, etc., that use of the Content amounts to infringement(s) of a third party's Intellectual Property Rights.
If Content Provider fails to meet the warranty described in above, Comviva will notify Content Provider in writing within forty-eight (48) hours of the claimed inadequate Content Services and in such an event, the Content Provider shall be obligated to re-perform the Content Services, without prejudice to other rights and remedies available to Comviva under this Agreement.
3.2 Content Provider warrants that the Users/Subscribersshall have right to use the downloaded Content in perpetuity.
3.3 Content Provider warrants that the Content offered in terms of this Agreement shall not contain or engage in activities (and shall not frame, link to, advertise, or otherwise endorse any other website or, media, or content that contain content or engages in following activities) and shall always be free of:
(a) any vulgar, obscene content.
(b) any adverse, offensive / derogatory reference to corporations or brands.
(c) any adverse, offensive / derogatory reference to any personality, living or dead.
(d) any adverse, offensive / derogatory reference to communities, living or extinct.
(e) any adverse, offensive / derogatory reference to any city, building, geographical feature, etc. that can be singularly / uniquely identified in the world.
(f) any adverse, offensive / derogatory reference to any gender.
(g) any adverse, offensive / derogatory reference to animals.
(h) any adverse, offensive / derogatory reference to physical / racial attributes.
(i) any Content which depicts sexually explicit images, is lascivious or appeals to the prurient interest or the effect whereof is such as to tend to deprave or corrupt any person.
(j) any Content, the presentation, dissemination or disclosure whereof, infringes any intellectual property right or confidentiality obligation.
(k) any Content which Comviva / Customer, acting in its sole discretion, declares to be opposed to standards of morality or decency, or to be opposed to public policy or to Comviva.s / Customer.s internal code of conduct or other policies/guidelines adopted by Comviva / Customer.
(l) any adverse, offensive / derogatory reference to any other companies, organizations, religious associations, political parties, governments (state and central), anyone.s private life, any other commercial and non-commercial entities.
(l) Any Content, which could give ground for action for defamation or misrepresentation or breach of confidence or breach of copyright or is otherwise offensive to the public.
(m) AnyContent that communicates words, which incite terrorism, the misuse of weapon, or encourage or incite a person to commit criminal offence.
(n) AnyContent that suggests or encourages or incites any person to use harmful substance or to engage in dangerous practices.
(o) AnyContent whose purpose, either directly or indirectly, is to promote the sale of goods or services, shall bear an identification stating that the message or program is an advertisement.The Content of the message or program which is an advertisement shall comply with the applicable code and advertising standards.
(p) Any Content that advertises alcohol, tobacco, firearms, feminine hygiene products (or similarly objectionable products that artists typically don't wish to be associated).
(q) Any Content that infringes on the privacy rights of any individual or organization.
3.4 Content Provider warrants that Content Provider is responsible for procuring all the necessary Intellectual Property Rights and making the requisite royalty payments to third parties for the Content provided hereunder. Additionally, at Comviva.s request, Content Provider shall provide access to and copies of all documents in support of the claimed rights of the Content Provider in and to the Content.
3.5 Content Providerwarrants that it shall, upon request from Comviva, provide adequate documents (linked agreement signed between Content Provider andlabel/ artist/ content owner) that clearly depicts and establishesContent Provider.s rights for Content distribution license under this Agreement.
3.6 Content Provider undertakes to settle all propriety rights (intellectual, copyright or otherwise) as may be required by law, for broadcast and distribution of Content Provider.s services and Content. Content Provider further undertakes to contract with individuals, third parties owning such rights to allow their use over the Term or any ExtendedTerm thereof. Content Provider undertakes to release Comviva/Customer from all legal accountability and any legal actions which may be undertaken by Parties owning such rights, and to assume legal defense(s) at its own cost for any legal actions which may be brought against Comviva/Customer and are associated with or related to intellectual rights, copyrights or ownership of Content Provider.
Content Provideragrees to and shall defend, indemnify and hold harmless Comviva for any claims / suits / losses / actions / legal proceedings and all legal expenses (including but not limited to, attorneys. fees) that may arise directly or indirectly in relation to a demand thatexercise of rights granted hereunder by Comviva or anyone claiming through Comviva hereunder, has resulted in infringement of third party Intellectual Property Rights in relation to the Content provided herein, including but not limited to, any dispute pertaining to non-payment of license fee/royalty by Content Provider to the owner of the Intellectual Property Rights in and to the Content and /or breach of warranties under section 7.3. If any portion of the Content or related Content Services becomes the subject of a claim of infringe,ment, then Content Provider shall, atits option and expense, (a) procure for Comviva the right to continued use of the Content and Content Services, or (b) replace or modify the Content and Content Servicesso that it becomes non-infringing.
Save as otherwise provided under the clauses related to INDEMNIFICATION and Confidential Information, neither Party shall be liable for any indirect, incidental, special, exemplary, punitive or consequential damages arising from any claim arising out of or related to this Agreement, including but not limited to damages for lost data or lost profits, however caused and under any theory of liability, including but not limited to contract, tort, strict liability, and negligence theories, regardless of whether or not the other Party was aware, should have been aware, or was advised of the possibility of such damage. In any event, the total liability of Comviva arising out of or related to this Agreement shall not exceed the average monthly Revenue Share paid by Comviva in a specific calendar month.For avoidance of doubt Comviva shall not be liable for any illegal distribution/reproduction/ use of Content at any stage by any third party.
6.1 Confidential Information: Confidential Information means all information, strategy and know-how, regardless of whether or not in writing, of a private, secret or confidential nature that relates to the business, technical and financial affairs of the Disclosing Party, its employees, Subscribers / Users, Affiliates, Customers, potential customers, suppliers or potential suppliers, provided or disclosed to the Receiving Party or which becomes known to the Receiving Party, whether or not marked or otherwise designated as .confidential., .proprietary. or with any other legend indicating its proprietary nature. Proprietary information includes, without limitation, all forms and types of financial, business, scientific, technical, or engineering information, including patterns, plans, compilations, inventions and development, products, formulas, designs, prototypes, methods, techniques, processes, procedures computer programs and software (whether as source code or object code). Each Party (the .Disclosing Party.) may, during the term of this Agreement, deliver to the other Party (the .Receiving Party.) certain non-public confidential and proprietary information regarding the transactions contemplated by this Agreement. In order to be protected as Confidential Information, information that is disclosed in writing must be marked prominently with the legend .confidential., or with a similar legend. If the information is disclosed orally, in order to be protected, it must be described as Confidential Information at the time of oral disclosure and confirmed as such in writing within thirty (30) days.
6.2 Disclosure and Use: Receiving Party will (1) disclose Confidential Information only to its employees, agentsand professional advisors on need to know basis and are informed of its confidential nature, and after they agree to comply with confidentiality obligations similar to those under this Agreement, (2) not disclose Confidential Information to any third party, (3) protect the Confidential Information with the degree of care with which it protects its own confidential information, but in no case with less than a reasonable degree of care, and (4) promptly notify Disclosing Party of any breach of this Agreement.
7.1 Dispute Resolution: All disputes or differences arising out of or in connection with the execution, interpretation and performance of this Agreement, unless settled amicably by the Parties hereto, shall be referred to and exclusively settled by Arbitration in accordance with Indian Arbitration & Conciliation Act, 1996, by a single Arbitrator and the venue of the arbitration shall be New Delhi, India. The language of arbitration shall be English. The decision of the arbitrators shall be final and binding upon both the parties. The costs of arbitration including the fees and expenses of arbitration shall be borne equally by the parties hereto, provided, however, that each Party shall bear the cost of preparing and presenting its own claims and/or defenses.
7.2 Governing Law: This Agreement shall be governed and construed by the laws of the Republic of India. The parties irrevocably consent to the jurisdiction and venue of courts at New Delhi, India without regard to or application of choice of law rules.