CONTENT PROVIDER AGREEMENT
THIS AGREEMENT is made and entered into on this tenth (10th) day of January, Two Thousand and Eighteen (2018) and this Agreement shall be effective from the Tenth (10th) day of January, Two Thousand and Eighteen (2018) ("Effective Date").
...............................,................................................ (bearer of National Identification Number ................................................) of ................................................................................ (hereinafter referred to as the "Content Provider" which term shall where the context so requires mean and include the said Content Provider, his / her heirs, executors and administrators) of the First Part;
DIALOG AXIATA PLC, a company duly incorporated under the laws of Sri Lanka bearing company number PQ 38 having its registered office at No. 475, Union Place Colombo 2, Sri Lanka (hereinafter referred to as "DIALOG" which term shall where the context so requires mean and include the said Dialog Axiata PLC, its successors and assigns) of the Second Part;
- 01. This Content Provider Agreement ("Agreement") shall apply to the Content Provider who is either an individual or organization supplying content to the site "www.viutube.lk" and shall constitute a binding, legal agreement between the Content Provider and DIALOG;
- 02. By using the site www.viutube.lk (hereinafter referred to as "ViuTube.lk" / "ViuTube") and its related platforms and by executing this Agreement, the Content Provider accepts the terms and conditions described below and the Content Provider warrants and represents that the Content Provider has the legal capacity to enter into this Agreement;
- 03. ViuTube is an online / mobile portal managed by DIALOG that serves to facilitate and promote Sri Lankan video and audio content to Sri Lankan and global audiences;
- 04. The ViuTube site exists as a resource for content providers and publishers to distribute their works and for Users to view and share same amongst their social networks.
01. Definitions and Interpretations.
In this Agreement the following words and expressions shall, unless the context otherwise requires, have the following meanings:
"Content" shall mean the digital content morefully set out in Appendix A hereto, licensed to DIALOG by the Content Provider and which content may consist of spoken word audio, information, data, text, software, music, sound, photographs, graphics, video, messages or such other materials;
"Agreement" shall mean this agreement between DIALOG and the Content Provider and the annexes and any other document expressly incorporated into this Agreement (each as amended from time to time with the agreement of the parties or in the manner as set out in these terms hereto);
"Users" shall mean and include both channel subscribers who shall subscribe to; and / or viewers who shall view; the Content Provider's Content on the ViuTube site;
02. Scope and Mutual Covenants / Obligations.
The parties agree that;
- 2.1 The Content Provider as a content provider distributing its work through ViuTube retains the copyright in the Content.
- 2.2 The Content Provider shall grant to DIALOG assignable and sub-licensable economic rights of the Content in consideration of the payments set out herein and further agrees to grant to DIALOG the licensed right to use, post, display, copy, sell, and distribute the Content free of any encumbrances.
- 2.3 DIALOG reserves a licensed right to excerpt the Content for use in marketing materials provided that DIALOG credits the Content Provider; the parties further agree that DIALOG may make minor modifications to the Content for technical or editorial reasons.
- 2.4 The economic rights to the Content enabled to DIALOG by the Content Provider shall include DIALOG's right to offer free samples of the Content according to the Content Provider's specifications and subject to applicable laws and regulations. If no specifications are given, DIALOG reserves the right to create samples. Samples created by DIALOG shall not exceed ten per centum (10%) of Content length or fifteen (15) minutes, whichever is shorter.
- 2.5 DIALOG reserves the right to make limited, royalty-free copies of the Content for the purposes of marketing and promotion such as the demonstration of system capabilities to potential content providers, investors and partners.
- 2.6 DIALOG reserves the right to limit downloads and/or streams of the Content or remove Content entirely due to cost associated with hosting, indexing and displaying such Content. In addition, DIALOG reserves the right to display advertising before, after or in conjunction with the distribution of Content that is available. DIALOG shall select the Content to be uploaded at its discretion and shall have the right to reject any Content without giving any reason whatsoever.
- 2.7 During this Agreement DIALOG shall have a transferable license to use the Content Provider's trademarks, copyrights, patents and other intellectual property rights in respect of the Content to the extent necessary for the performance of this Agreement.
- 2.8 DIALOG shall be responsible for the collection and billing of revenue from Users and DIALOG shall provide the contact details (i.e. telephone number, address and email address) of the Content Provider to any third party in the event such third party disputes the intellectual property rights of the Content.
- 2.9 The Content Provider shall support DIALOG in any marketing and promotion of the Content by supplying relevant information and material in relation to the Content as per the requirements of DIALOG;
- 2.10 The Content Provider shall ensure the timely delivery of the Content to DIALOG in the manner instructed by DIALOG (if so instructed by DIALOG) and shall ensure not to jeopardise the unimpeded growth of the service to Users under any circumstances due to its failure to adhere to the delivery schedules of DIALOG (if any);
- 2.11 The Content Provider shall be wholly responsible for the accuracy and credibility of the Content provided under this Agreement and extend its maximum co-operation to DIALOG in all matters pertaining to the enhancement and development of the service provided to Users. The Content Provider shall be liable to the Users for the Content and any issue thereto including any issues 4 Confidential stemming from the subscription of such Content by Users. The Content Provider agrees that DIALOG shall not guarantee nor be liable for the accuracy, integrity or quality of Content.
- 2.12 The Content Provider shall be prohibited from impersonating DIALOG or using DIALOG to impersonate another person or entity or to forge any e-mail communication or message.
- 2.13 DIALOG maintains high editorial standards for Content submitted to the site. In relation to the services provided to Users via the ViuTube site, DIALOG strives to educate and inspire the masses and reserves the right to remove or refrain from publishing any content which DIALOG feels does not meet its quality standards and/or does not serve educational or inspirational purposes. However, it shall be solely the Content Provider's responsibility to ensure that inappropriate content is not uploaded on to the site. The Content Provider shall look to the site's existing inventory of content as a guideline as to which forms of content are acceptable for publication.
- 2.14 DIALOG may retain certain portions of the Content for a specific time period subject to retainer terms as mutually agreed between the parties. Such retainer terms shall be communicated to the Content Provider by DIALOG via a duly signed letter and the same shall thereafter be counter signed and agreed to by the Content Provider. Such letter once duly executed shall form an integral part of this Agreement.
03. Representations and Warranties.
- 3.1 As a content provider distributing Content through DIALOG, the Content Provider represents and warrants that the Content: 1) Is owned by the Content Provider and that the Content Provider owns all copyrights to the Content and has all economic rights thereto or to the extent the Content is owned by someone else, that the Content Provider has entered into all necessary license arrangements and completed all necessary documentation with such copyright owners of the Content and obtained that party's express permission to provide the Content and the relevant economic rights thereto to DIALOG and ViuTube for use, copying and distribution and such other rights transmitted under the license in this Agreement; 2) Does not violate or infringe in any manner any copyright, trademark, trade secret or other intellectual property right of a third party; 3) Does not invade any individual's right of privacy or publicity and does not libel, defame, cause injury to or otherwise infringe or violate the rights of any person or third party; 4) Does not contain material that is unlawful, obscene, defamatory, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable; 5) Does not include malicious codes, which includes, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; 6) Does not break the law, facilitate the breaking of the law, or violate any applicable regulation or any rule or policy of DIALOG; 7) Does not offer or disseminate fraudulent goods, services, schemes, or promotions, or promote domain names, URLs, or hyperlinks that constitute commercial content such as that found in advertising, promotions, or solicitations;
- 3.2 The Content Provider further warrants and represents that; 1) it has the right to license the economic rights to DIALOG and has the full right and legal capacity to enter into this Agreement, to fully perform this Agreement and to make the grants herein; 2) there are no likely, threatened or pending litigation, arbitration or other legal proceedings against or in respect of the Content and no judgments or awards have been given, which in anyway affect, prejudice or restrict the Content Provider's obligations hereunder; 3)entering into the Agreement does not constitute a breach by the Content Provider of any statutory or contractual obligations; 4) it shall comply with all laws and regulations; 5) it has all necessary rights including right of ownership of the Content to enter into this Agreement and can fulfil the service envisaged herein to the satisfaction of DIALOG;
04. Indemnity and further Warranty.
- 4.1 In the event any of the above representations and warranties set forth directly above are not true, the Content Provider shall indemnify DIALOG for any breaches or misrepresentations, takings or misappropriations, infringement or piracy of the Content, including any and all damages, attorney's fees and other expenses related to any such misrepresentation or breach of warranty.
- 4.2 To the best of the Content Provider's knowledge, all purported factual information in the Content uploaded is true and accurate, and the use of any information in the Content will not result in personal injury to any user.
- 4.3 The Content Provider shall indemnify and hold harmless DIALOG, its successors and assigns and their respective directors, employees and agents, from and against any claim, loss, liability, damages, or judgements including attorney's fees, arising from any breach of the above terms, conditions, covenants, obligations, representations and warranties notwithstanding expiration or sooner determination of this Agreement.
- 4.4 The Content Provider shall indemnify DIALOG against any claims for infringement of any third party intellectual property rights arising from the use, distribution and re-selling of the Content provided hereunder to DIALOG.
05. Payment Terms.
- 5.1 The following payments shall be made to the Content Provider by DIALOG in line with the formula set out below:
- 5.2 The pricing formula herein shall not be varied during the period of this Agreement unless the same is mutually changed by the parties through a written agreement.
- 5.3 Any additional payments regarding the Content which is required to be paid to any third party as per the laws of Sri Lanka shall be paid or reimbursed by the Content Provider.
- 5.4 Billing period for above payments are 1st - 31st /30th of each month (calendar month). User count for payments will be considered based on the count on the last day of the calendar month. All payments and charges to be made to the Content Provider shall be in Sri Lanka Rupees (Rs) within thirty (30) Days of DIALOG receiving the approved invoice.
- 5.5 Payments for views set out in Clause 5.1 above shall be calculated based on total unique video views per calendar month only.
- 5.6 Where appropriate and legally required, all taxes applicable under this Agreement on the payments made hereunder shall be borne or paid by the party charged with the tax.
- 5.7 The payments under this Agreement do not include Value Added Taxes (VAT) imposed under the Value Added Tax Act, No 14 of 2002 and amendment thereto. Therefore, such tax shall be charged by the Content Provider and shall be paid by DIALOG only upon submission of proof of registration for VAT and a valid tax invoice in terms of the Value Added Tax Act, No 14 of 2002 as amended.
- 5.8 Where any payment made under this Agreement is subject to withholding tax ("WHT"), DIALOG shall make the necessary payments hereunder after deducting WHT thereon (subject to any direction made available by the Content Provider) and furnish the certificate of deduction to the Content Provider. However, if there is a direction received from the relevant authority to not withhold WHT, DIALOG will adhere to such instruction.
- 5.9 In case of amendment to current taxes and /or applicability of any new / additional taxes by way of statute or by-law, the parties hereto shall follow such amending or new legislation or by-law from the effective dates indicated in such legislation.
06. Removing Content and/or Terminating Agreement / Effects of Termination.
- 6.1 The Content Provider may remove Content from the ViuTube site if it no longer wishes to distribute Content through the site. The exceptions for this ability to remove Content are as follows: 1) Content retained in DIALOG's archives to the extent required by DIALOG's data backup systems. 2) Content that has been made available under the retainer; which Content is required to remain on the site through the period specified in the retainer terms. 3) Content that has been made available to purchasers in electronic formats may also remain available on the site (in purchasers' Libraries) to Users who have subscribed for / purchased such Content. 4)DIALOG does not retain any residual rights to removed Content other than those outlined above.
- 6.2 Notwithstanding the term of this Agreement, either party, by giving thirty (30) days' notice in writing to the other party, without prejudice to any other rights herein, may terminate this Agreement at the occurrence of any of the following circumstances; 1)if a party commits a breach of any of the terms and conditions of this Agreement and such breach is not remedied within the aforesaid thirty (30) day written notification period; 2) if either party becomes insolvent or is declared bankrupt; 3)if the Content Provider ceases to be the owner of the Content.
- 6.3 Without prejudice to any other rights herein stipulated DIALOG may terminate this Agreement at any time by giving thirty (30) days prior written notice without giving any reason whatsoever.
- 6.4 Unless otherwise set out to the contrary herein and without prejudice to Clause 6.1, in the event of termination of this Agreement as aforesaid, the Users shall no longer have access to the Content via DIALOG and the ViuTube site. DIALOG and the Content Provider shall act in accordance with Clause 6.1 in relation to retained Content and Content purchased / subscribed for by Users and the Content Provider shall be liable to the Users for such subscribed / purchased Content.
- 6.5 Notwithstanding any other rights and remedies provided elsewhere in the Agreement, on termination of this Agreement: 1) Neither party hereto shall represent the other party in any of its dealings. Furthermore, parties shall not intentionally or otherwise commit any act(s) as would make a third party to conclude that DIALOG is still the Content Provider's promoter and marketer of the Content and vice versa; 2) Parties shall refrain from using each other's name, trade mark in any audio or visual form from the date of termination except for those for which written permission has already been obtained.
- 6.6 Any termination of this Agreement for any reason shall not affect any provision in this Agreement which is intended to survive or operate after such termination.
07. General Agreement Terms.
- 7.1 International Content Providers DIALOG makes no representation that material on the site is appropriate or available at locations outside of Sri Lanka. The Content Provider may not use the site or export the Contents in violation of U.S. or other international export regulations. If the Content Provider accesses the site from a location outside of Sri Lanka, the Content Provider is responsible for compliance with all applicable local laws.
- 7.3 Disclaimers The site and all software, services, information, materials, forums, tools and content provided or offered on the site are provided or offered by DIALOG and its third-party licensors on an "as-is", "asavailable" basis, without representation or warranty of any kind by DIALOG, including but not limited to implied warranties of merchantability, non-infringement and fitness for a particular purpose. Without limiting the prior statement, DIALOG cannot vouch for the quality, accuracy, completeness, or timeliness of any content or information sold or provided through the site
- 7.4 Limitation of Liability In no event shall DIALOG or any of its officers, employees, directors, affiliates, agents or third-party licensors and content providers be liable to the Content Provider or anyone else for any special, consequential, indirect, cover, punitive, incidental or similar damages (including, without limitation, lost profits, lost sales, or lost business) directly or indirectly related to or arising out of the site, content on the site, or any transaction entered hereunder, whether in contract, tort or otherwise, even if DIALOG or one of its officers, employees, affiliates or agents have been advised of the possibility of such damages.
- 7.5 Proprietary Rights DIALOG possess the sole and exclusive licenses to the intellectual property rights, including all copyright, patents, and trademarks, associated with the site, including all associated software, text, graphics, and logos except for any content provided by third parties such as the Content Provider, in which event such content shall be owned by the licensors of such content and shall have been licensed to DIALOG pursuant to the execution of a relevant Content Provider Agreement. The Content Provider agrees not to modify, copy, distribute or reverse engineer any of the software included on the site. DIALOG and its third-party licensors reserve all rights not expressly granted in this Agreement
- 7.6 Miscellaneous Legal Information 1) This Agreement is binding on the parties. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right. In the event of a waiver of any right by a party, the same shall not be construed as a continuing waiver unless otherwise specifically mentioned thereto. 2) This Content Provider Agreement and all terms hereto shall be fully transferable or assignable by DIALOG in whole or in part, without any consent of the Content Provider. The Content Provider shall not without the prior written consent of DIALOG assign or transfer in whole or in part, this Agreement. DIALOG without any additional notice to or consent of the Content Provider may enter into any agency or sub-distribution or super-distribution agreements with respect to the Content or other materials of the Content Provider. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 3) Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect. 4) This Agreement is governed by the laws of Sri Lanka, without regard to its choice of law provisions. The parties agree that any dispute related to this Agreement or the site that cannot be settled by good faith negotiation shall be finally resolved through any Court of competent jurisdiction in Sri Lanka. 5) Each party shall be excused from performance and shall not be liable for any delay caused by the occurrence of any contingency beyond the reasonable control of the excused party except for obligations to make payments hereunder. These contingencies include, but are not limited 11 Confidential to, war, sabotage, insurrections, riots or other acts of civil disobedience, labor disturbances or shortages, act of the public enemy, failure or delay in transportation, act of any government affecting the terms hereof, accidents, fire, explosions, floods, severe weather or other acts of God. This Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever
- 7.7 Term Unless otherwise terminated in line with the termination provisions herein, this Agreement is effective for Twelve (12) months from the Effective Date and is subject to further extension at the discretion of DIALOG. DIALOG may terminate this Agreement forthwith in the event performance standards are not met by the Content Provider. All provisions of this Agreement relating to payment, disclaimers, limitation of liability, indemnification, confidentiality, and proprietary rights shall survive termination or expiration of this Agreement.
- 7.8 Agreement / Amendments / Notices / Authorisation and Confidentiality 1) The Content Provider shall not make or permit or authorize the making of any press release or public statement or disclosure concerning this Agreement or any of the transactions contemplated in it without the prior written consent of DIALOG. 2) No waiver of any of the terms and conditions shall be valid unless it is in writing and signed by the parties hereto, in accordance with the provisions hereof. 3) DIALOG may amend the terms in this Agreement from time to time. When the terms are changed, DIALOG shall make a posting on the site regarding such amendment. The Content Provider agrees to review the site for any amendment to the terms of this Agreement from time to time and in the event the Content Provider does not agree to be bound by any future changes, the Content Provider shall promptly notify DIALOG of same and the parties shall thereafter attempt to arrive at a mutually agreeable arrangement. In the event such mutual agreement is not met, the Content Provider may discontinue the use of the site with sixty (60) days written notification to DIALOG. If the Content Provider uses the site after DIALOG has posted a change to these terms on the site, the Content Provider shall be deemed as having agreed to be bound by such amendments. 4) All rights and obligations referred to in this Agreement shall apply during the period of this Agreement provided that where any right(s) and/or obligation(s) has been 12 Confidential accrued, such right/obligation shall nevertheless be complied with even after the termination of this Agreement, in terms of this Agreement. 5) This Agreement constitutes the entire understanding and agreement of the parties hereto relating to the subject matter of this Agreement and except as expressly provided in this Agreement, supersedes and extinguishes all prior agreements, understandings and undertakings between the parties hereto relating to the same. 6) The parties hereto agree and recognize that not all of matters forming the intent of the parties hereto may be incorporated in this Agreement and not all possibilities which may arise in connection with the subject matter hereof can be foreseen at the time being and fully provided for at the execution of this Agreement. Where any omission or lacuna becomes known, the parties hereto agree to amend in writing this Agreement to cover such omission or lacuna in conformity with the spirit of this Agreement. The parties hereto agree that the principles of commercial loyalty shall apply to their cooperation. They mutually assure one another that they will fulfil the provisions of this Agreement and all individual agreements concluded in connection with it correspondingly. 7) Each party to this Agreement shall use its best efforts to keep in strict confidence, and shall bind all of its employees and agents to keep in strict confidence, all commercial and technical information in whatever form acquired by it (whether directly or indirectly) from or concerning any other party under this Agreement or in connection with the performance of the Agreement (herein after called "Confidential Information"). No party shall utilise such Confidential Information for any purposes other than those contemplated in this Agreement. Further, no party shall at any time disclose any Confidential Information to any third party for any purposes other than those contemplated in this Agreement and without the prior written consent of the other party. The following information shall be excluded from the foregoing scope of Confidential Information:
- a) information which at the time of disclosure is generally available to the public;
- b) information which after disclosure becomes generally available to the public through no fault of the receiving party;
- c) information which the receiving party can show was in its possession prior to disclosure and which was not acquired directly or indirectly from the other party;
- d) information which the receiving party can show was received by it after the time of disclosure from any party outside the Agreement without any obligation of confidentiality and which was not acquired directly or indirectly from the other party; or
- e) information which the party concerned shall be compelled to divulge if required by Law. The provisions set out in this clause hereof shall remain in force for an unlimited period of time notwithstanding the expiration or sooner determination of this Agreement. 8) The parties hereto represent and warrant to each other that; a) signatories of the parties hereto are entitled to sign on behalf of the parties hereto and the rights and obligations of the parties hereto shall be legally valid and binding and enforceable on the parties hereto; b) information/documents furnished by the parties hereto is/are fair and accurate and no changes have since taken place; c) the parties hereto shall exercise utmost good faith in the exercise of their powers and functions with respect to or in connection with the implementation of the provisions of this Agreement and shall not do anything detrimental to the performance of the terms of this Agreement; and d) where there is any conflict of interest they shall disclose such interest to the other party and act within the spirit of this Agreement. 9) Unless otherwise set out to the contrary herein, all notices, documents or communications between the parties under this Agreement shall be considered as validly served if forwarded in the form of registered letter/courier/facsimile/ electronic mail and any other agreed mode of written communication, to the addresses set out at the beginning hereto: Any notice sent by registered post, facsimile transmission, electronic mail or delivered by courier shall be deemed to have been served, if by registered post, within seven (7) Days of postage, if by facsimile transmission upon receiving the confirmation report stating successful transmission of the facsimile if sent between 9 a.m. and 5 p.m. on such working day and if sent after 5 p.m., the next working day, if sent by electronic mail, at the time when it is sent on the condition that it is sent during normal working days and hours of between 9.00 a.m. to 5.30 p.m. on a Business Day, failing which the receipt would be deemed to have been received on the next working day and if delivered by courier, on the delivery against receipt to the addresses set out above or such other address as shall be furnished in writing by the parties.
IN WITNESS WHEREOF , the parties have caused this Content Provider Agreement to be executed by their respective parties thereunto duly authorized.
Signed on behalf of
DIALOG AXIATA PLC
Name: Mangala H. Hettiarachchi
Designation: Senior General Manager Global and Content Services
Name: Manori Wickremeratne
Designation: Senior Manager - Corporate Finance
Signed by the Content Provider
(bearer of N I C Number............................................)