This Reference Interconnect Offer (“RIO”), inter alia, provides broad technical and commercial terms and conditions offered by ESPN Software India Pvt. Ltd. (hereinafter referred to as “the Company”) for interconnection for addressable system (other than direct to home platform and CAS) (hereinafter referred to as “Addressable Platform”). Party applying for interconnection shall be hereinafter referred to as “Affiliate”.
The terms and conditions are as under:
A. A-la-carte Rates#
| Channel/Service | Price (INR) Per Set Top Box Per Month* |
ESPN | 14.89 |
STAR Sports | 14.89 |
STAR Cricket | 12.58 |
Bouquet Rates#
| Bouquet | Price (INR) Per Set Top Box Per Month* |
ESPN & STAR Sports Bouquet | 19.85 |
* The rates above are stipulated at 42% of the Non CAS rates in compliance with the interim order of the Hon’ble Supreme court dated 18th April 2011 passed in Civil Appeal No. 2847-2854 of 2011 and would be subject to revision depending upon the order as may be finally passed.
#Company reserves its right, subject to applicable regulations of Telecom Regulatory Authority of India ("TRAI"), to revise the Price per Set Top Box per month mentioned herein above. Upon such revision, Affiliate agrees and unconditionally undertakes to pay the revised Subscription Fee pro rata from the effective date of such revision.
B. New Channels
I. ESPN HD AND STAR Cricket HD channels -
The Company will launch two new high definition ("HD") television channels providing HD feed of sports related content subject to and in accordance with the relevant permissions from and any terms prescribed by, the Ministry of Information and Broadcasting. The Company will launch these channels, namely, 'ESPN HD' and 'STAR Cricket HD', on 19th July, 2011 and the said channels will be available for subscription from such date.
There are substantial fixed costs associated with the launch and maintenance of an HD channel on a continuous basis, including but not limited to, enhancement of the existent technical systems and establishment costs. Keeping in view the foregoing and the premium quality of the service along with other relevant factors, the Company proposes the following slabs for subscription to ESPN HD and STAR Cricket HD channels from 19th July, 2011 -
A-la-carte#
| Channel/Service | Price (INR) Per Set Top Box Per Month |
ESPN HD | 141.80 |
STAR Cricket HD | 119.90 |
Bouquet Rates#
| Bouquet | Price (INR) Per Set Top Box Per Month |
ESPN HD & STAR Cricket HD Bouquet | 183.20 |
Discount Slabs#
| ESPN HD and STAR Cricket HD subscribers as % of total platform subs | % Discount on full price | ESPN HD Price (INR) per set top box per month | STAR Cricket HD Price (INR) per set top box per month | Bouquet Price (INR) per set top box per month |
76% and above | 40% | 85 | 72 | 110 |
| 51-75% | 20% | 113 | 96 | 147 |
| less than 50% | Nil | 142 | 120 | 183 |
#Company reserves its right to revise the Price per Set Top Box per month mentioned herein above. Upon such revision, Affiliate agrees and unconditionally undertakes to pay the revised subscription fee pro rata from the effective date of such revision.
II. ESPNEWS channel –
The Company will launch on 19th July, 2011 the 'ESPNEWS' channel, a channel dedicated to sports related news programming, subject to and in accordance with the relevant permission from and any terms prescribed by, the Ministry of Information and Broadcasting, and the said channel will be available for subscription from such date on a-la-carte basis, at the following rate –
A-la-carte#
| Channel/Service | Price (INR) Per Set Top Box Per Month* |
ESPNEWS | 3.82 |
* The above rate is stipulated at 42% of the Non CAS rates in compliance with the interim order of the Hon’ble Supreme Court dated 18th April 2011 passed in Civil Appeal No. 2847-2854 of 2011 and would be subject to revision depending upon the order as may be finally passed.
#Company reserves its right, subject to applicable regulations of Telecom Regulatory Authority of India ("TRAI"), to revise the Price per Set Top Box per month mentioned herein above. Upon such revision, Affiliate agrees and unconditionally undertakes to pay the revised price pro rata from the effective date of such revision.
C. Licence Fee
For each month or part thereof during the Term of the agreement, Affiliate shall pay to the Company, the Monthly Licence Fee which shall be the Rate multiplied by the Monthly Average Subscriber Level.
The a-la-carte and bouquet “Rate” per Subscriber is set out in Article A and B above. The rates mentioned above are exclusive of all taxes and levies.
The “Monthly Average Subscriber Level” is equal to the sum of the number of subscribers on the first and last day of the month in question divided by two.
For the purpose of calculation of the Monthly License Fee payable to the Company, “Subscriber” means, for any calendar month, each Set Top Box, which is availing the Channel(s) of the Company through the Affiliate.
D. Calculation of License Fee
I. In case an Affiliate avails one or more Bouquet(s) of the Company:
(a) If the Affiliate is providing the Bouquet(s) as a whole to its subscribers, the Monthly License Fee for such Bouquet(s) shall be equal to the Bouquet rate as set out hereinabove multiplied by the number of monthly average number of subscribers availing the Bouquet(s).
(b) if the Affiliate does not offer such opted bouquet(s) as a whole to its subscriber but offers only certain channels comprised in such bouquet or packages the channels comprised in such opted bouquet in a manner resulting in different subscriber base for different channels comprised in such opted bouquet, then the payment to the Company for such entire opted bouquet by the Affiliate, shall be calculated on the basis of subscriber base for the channel which has highest subscriber base amongst the channels comprised in the bouquet.
II In case an Affiliate avails one or more or all channels of the Company on ala carte rate basis:
(a) If the Affiliate is providing the channels on ala carte basis to its addressable subscribers, the Monthly License Fee for such ala carte channels shall be equal to the ala carte rate as set out hereinabove multiplied by the number of monthly average number of subscribers availing the channels on ala carte basis.
b) if the Affiliate does not offer such opted ala carte channel(s) as ala carte to its subscriber but offers the ala carte channel (s) in packages, then the payment to the Company for each of the ala carte channels, shall be calculated on the basis of subscriber base of the package in which such opted ala carte channel has been placed.
III In case an Affiliate avails one or more channels on ala carte rate basis and also opts for different Bouquet(s) not comprising of channels opted on ala carte basis of the Company:
(a) For bouquet(s), the monthly license fee shall be calculated on the basis of sub clause I above.
(b) For ala carte channels, the monthly license fee shall be calculated on the basis of sub clause II above.
Payment of the License Fee shall be subject to deduction of any withholding tax/ TDS in accordance with the provisions of the Indian Income Tax Act, 1961, as amended from time to time.
E. Payment and Other Terms
I The Monthly Licence Fee shall be paid monthly in arrears within fifteen (15) days of receipt of invoice raised on the basis of report of the Affiliate by the Company without any deduction except deduction of withholding tax/TDS as provided in this RIO.
II Within seven days of end of each month, the Affiliate shall provide opening, closing and average number of subscribers for that month, based on which Company shall raise an invoice on the Affiliate. In case the Affiliate fails to send the report within the said period of seven days, Company shall have the right to raise a provisional invoice and the Affiliate shall be under obligation to pay the license fee on the basis of such provisional invoice in accordance with the terms of this clause. However the provisional invoice shall be for an amount not more than the monthly license fee payable by the Affiliate for the immediately preceding month. On receipt of the report from the Affiliate, the parties would conduct reconciliation between the provisional invoice raised by the Company and the report sent by the Affiliate.
III The Affiliate shall be required to make payments by the Due Date in accordance with the terms hereof, and any failure to do so on the part of the Affiliate shall constitute a material breach hereunder. Late payments shall also attract interest calculated from the date payment was due until the date payment is made in full at a pro rata monthly rate of 1.5 %. The imposition and collection of interest on late payments does not constitute a waiver of the Affiliate’s obligation to pay the License Fee by the Due Date, and Company shall retain all of its other rights and remedies under the Agreement.
IV All Licence Fee payments hereunder are exclusive of all applicable indirect taxes including all and any service taxes, VAT, works contract taxes, customs duties, excise duties, entertainment taxes and other such taxes. All such taxes shall be at Affiliate’s cost and will be charged at the prevailing rates by the Company to the Affiliate.
V If payment of the Licence Fee is subject to deduction of any withholding tax/TDS in accordance with the provisions of the Indian Income Tax Act 1961, as amended from time to time, the Affiliate shall provide tax withholding certificates to Company within such period as has been specified in the Income Tax Act/ Rules/ Notifications/ Circulars issued thereunder.
1. This offer does not apply for sale:
(a) to following categories of commercial subscribers namely:
(i) hotels with rating of three star and above;
(ii) heritage hotels (as described in the guidelines for classification of hotels issued by Department of Tourism, Government of India);
(iii) any other hotel, motel, inn, and such other commercial establishment providing board and lodging and having fifty or more rooms; and
(b) in respect of programmes, shown on the occasion of a special event for common viewing, at any place registered under the Entertainment Tax Law and to which access is allowed on payment basis for a minimum of fifty persons.
2. Affiliate shall pay to the Company the Subscription Fee at the rates mentioned herein above based on the number of Set Top Boxes where the Service are distributed by Affiliate under the agreement.
3. The Subscription Fee shall be payable in full by Affiliate to the Company irrespective of the basis of payment by the Subscribers to Affiliate.
4. The current Subscription Fee Plan is as under:
‘Affiliates shall sell the Service to its subscribers for a minimum period of 1 year.’
5. Affiliate shall be liable to pay to the Company all amounts due and payable irrespective of whether its Subscribers have actually paid such amounts to him or whether any such Subscribers are active or have been deactivated by Affiliate.
6. All payments from Affiliate to the Company under the agreement shall be paid by Demand Draft or banker's cheque in favour of 'ESPN Software India Private Limited', payable at its head office or any other place that may be specified by the Company from time to time.
7. Any discounts or similar offerings made by Affiliate to its Subscribers in respect of the Services shall be at the sole cost and expense of Affiliate. It is clarified that Affiliate's obligations to pay the Subscription Fee to the Company shall be in accordance with the Subscription Fee Plan specified by the Company.
8. In the event of any dispute regarding the number of Subscribers declared by the Affiliate, the Company shall notify the Affiliate vide a written notice and furnish all relevant details in this regard. In such an event the Affiliate shall not later than 7(seven) days provide to the Company a detailed report containing correct conditional access log, SMS data and payment details of all subscribers reflecting transaction relating to the Services (ESS Channels), in particular. Such a report shall be authenticated by the agencies/ vendors providing conditional access Software and Subscriber Management/ Billing System Software. The Company may also at its option, require a joint audit with the Affiliate, in such an event the Affiliate shall make available all relevant material, the systems and measures referred to hereinabove for verification, inspection and audit by the Company or its representatives, auditors designated by the Company on reasonable notice to the Affiliate, during normal business hours. If it is established that the numbers of Subscribers who are receiving Company’s Channels/Services are more than the Subscribers declared by Affiliate under the Subscriber Report, the Affiliate undertakes to pay such increased Subscription Fee immediately thereupon without any delay or demur. Provided further that neither the Company's acceptance of any such information or payment, nor the Company's inspection or audit of the Affiliate's records or accounts shall prevent the Company from later disputing the accuracy or completeness of the same based on material coming into its possession after such inspection or audit.
9. Affiliate shall pay the following promptly to the Company on the due dates, on the basis of invoices raised by the Company on the basis of subscriber report provided by Affiliate to the Company, without any deduction or set-off:
(i) The Subscription Fees and, or, all revisions or modifications thereof agreed between the parties in writing, due and payable to the Company within the time stipulated under the terms of the agreement;
(ii) Any other sum payable by Affiliate to the Company under the agreement;
(iii) Any other payments statutorily required to be made by Affiliate to the Company; and
(iv) Interest @ 1.5% per month on all delayed payments (this payment shall be without prejudice to any other rights of the Company under the agreement and in law including, without limitation recovery of the IRD, deactivation of the Services, termination of the agreement and the like).
10. Subject to the terms and conditions contained herein, the Affiliate shall provide access to the content/ channels of the Company on a non-discriminatory basis.
F. Delivery and Security
All Channels of the Company must be delivered by Affiliate to subscribers in a securely encrypted manner and without any alteration. The uplink specifications, satellite capacity and infrastructure allocated by Affiliate in respect of signals of Company’s Channels by Affiliate to its subscribers shall be no worse than that of the broadcast signal of any other channel within the same genre on its Addressable Platform.
G. Anti-Piracy
I. In order to prevent theft, piracy, unauthorized retransmissions, redistribution or exhibition, copying or duplication of any Channel, in whole or in part, (hereinafter collectively referred to as “Piracy”), the Affiliate shall, prior to the commencement of the Term of the agreement and at all times during such Term, employ, maintain, and enforce fully effective conditional access delivery and content protection and security systems, and related physical security and operational procedures (hereinafter collectively referred to as the “Security Systems”) as may be specified (security specifications), in a non-discriminatory manner hereunder or in writing, from time to time, by the Company.
II. To ensure the Affiliate’s ongoing compliance with the security requirements set out in the Agreement, Company may require technical audits (“Technical Audit(s)”) conducted by an independent security technology auditor (“Technical Auditor”), approved by the Company in writing no more than twice per year during the Term, at Company’s cost and expense. If the results of any Technical Audit are not found to be satisfactory by either the Affiliate or Company, then Company shall work with the Affiliate in resolving this issue in the next fourteen (14) business days. If a solution is not reached at by then, Company may, in its sole discretion, suspend the Affiliate’s right to distribute the Channels or take other actions as provided under the Agreement, until such systems, procedures and security measures have been corrected to Company’s satisfaction. Affiliate shall bear the cost and expense of any subsequent Technical Audit to verify that the systems, procedures and security measures have been corrected by the Affiliate to Company’s satisfaction.
III. Affiliate shall deploy finger printing mechanisms to detect any piracy, violation of copyright and unauthorized viewing of the Channels, distributed / transmitted through its Platform at least every 10 minutes on 24 x 7 x 365(6) basis.
IV. Affiliate shall not authorize, cause or suffer any portion of any of the Channels to be recorded, duplicated, cablecast, exhibited or otherwise used for any purpose other than for distribution by Affiliate at the time the Channels are made available. If Affiliate becomes aware that any unauthorized third party is recording, duplicating, cablecasting, exhibiting or otherwise using any or all of the Channels for any other purpose, Affiliate shall within ten minutes of so becoming aware of such recording, duplicating, cablecasting, exhibiting or otherwise using any or all of the Channels for any other purpose, notify the Company and the Affiliate shall also switch off the concerned Set Top Box to prevent such unauthorized use. However, use of a Set Top Box with Personal Video Recorder/ Digital Video Recorder facility which has been supplied by the Affiliate shall not be treated as unauthorized use, as long as such Set Top Box is used in accordance with the terms and conditions of the subscription agreement between the Affiliate and the subscriber.
V. If so instructed by Information (as defined below) by the Company, the Affiliate shall shut off or de-authorize the transmission to any unauthorized subscriber/ subscriber indulging in piracy, within ten minutes from the time it receives such instruction from the Company. Any communication under this clause shall be considered as valid Information only if (i) the information is sent through e-mail in a format as mutually agreed by the parties and (ii) the information is sent by a person(s) who is designated to send such information. However the “information” may even be provided by the Company representatives through other means of communications such as telephonic message, fax etc. and the said “information” shall later be confirmed by the Company through e mail and the Affiliate shall be under obligation to act upon such information.
1. Affiliate undertakes that the Services shall be distributed through an addressable system only and shall ensure that:
(i) The Finger Printings (FP), both covert & overt and on-screen-display messages ('OSD') of the Company should be displayed by Affiliate without any tampering with regard to time, location, duration, colour and frequency;
(ii) Finger Printings (both covert and overt) shall be provided by Affiliate at the scheduled time, location (by x-y coordinates), duration, colour and on demand specified by the Company and with a notice (either verbal or in writing) of thirty (30) minutes from the Company to Affiliate. It should be possible to programme the STB / CPE to display its FP through OSD messaging.
(iii) Covert FP would be made available every 30 seconds.
(iv) Overt FPs are displayed at least 5 times every hour between 9.00 AM – 11.00 PM and during the period of major events on the Channels / Services;
(v) The background box and font of the Overt FPs should be programmable in 10 different colours including “transparent” option.
(vi) All STBs / CPEs/ VCs should support FPs, both overt and covert types as well as the OSD feature. OSD (minimum of 150 characters message) should be programmable on a specific duration / continuous basis. The overt FP, and OSD should not be removable by any remote control / STB / CPE button operation.
(vii) FPs and OSDs to be programmable on global, group, and individual STB/ CPE basis;
(viii) All STBs / CPEs shall support both overt & covert Finger Printing as well as OSD messaging. They should have no ports / interface through which software / middleware can be upgraded / downgraded / modified.
(ix) If Common Interface ('CI') STB / CPE is used in the addressable system, then the combination of the CAM and STB / CPE should support all the security and anti-piracy requirements mentioned in this RIO.
(x) The STB / CPE and the smart card should be paired at all times.
(xi) The CA / SMS / STB / CPE should be compliant with applicable BIS standards.
(xii) Remote access (e.g. through dial up or otherwise) to addressable system (information related to Company Channels’ Subscribers) of the Affiliate shall be provided to the Company in order to permit the Company to verify the Subscriber numbers.
(xiii) No change in the Channel numbering Plan is made without Company's prior written approval;
(xiv) It shall provide the Company with 10 STBs / CPEs authorised for every channel/ bouquet / package distributed by the Affiliate for anti-piracy monitoring;
(xv) On request of the Company, it shall make available to the Company, reports containing channel wise history of all the authorizations/ de-authorizations of all the STBs / CPEs/ VCs/ Smart Cards for the last two years from the CA and SMS logs / databases. These reports should be authenticated by the conditional access (CA) system provider.
(xvi) That overt Finger Printing shall have highest 'priority' amongst any other on-screen-displays generated by the STB / CPE.
(xvii) It shall not resort to and, or, use any method technology, software now known or hereinafter devised to subvert the addressable system to the detriment of the interests of the Company.
(xviii) If security of CA is breached, or if the Services are viewed through an STB without FP or OSD, the Company reserves the right to discontinue its Services to Affiliate, subject to applicable TRAI regulations.
2.Affiliate undertakes to take all appropriate and necessary steps and measures to prevent piracy or any other violation of intellectual property rights in the Service, directly or indirectly. Affiliate further undertakes that:
(a) It shall ensure that no duplicate feed of the Services are provided; and
(b) It shall not indulge into Channel Disguise (as an example showing the Services under the name or heading of any other channel distributed by the Affiliate with the view to under declare the total number of ESS Subscribers under the agreement).
3. In the event Affiliate is unable to disconnect an STB / CPE involved in piracy/ signal theft of the Service within 12 hours of receiving the information from the Company, as mentioned in clause G (V) hereinabove as mention in the above clause, Company shall be entitled to discontinue the Service(s) in accordance with TRAI’s applicable regulation.
4. The Company and its representatives shall be entitled to visit all offices, head ends, control room and other locations (of Affiliate and, or, any of its sub operator) for any inspection, verification or other purposes mentioned hereinabove.
5. Affiliate shall, subject to the provisions hereof, ensure that the Services is provided to and received only through addressable system:
(a) By such Subscribers who have paid the full applicable Subscription Fees in respect thereof and no Subscriber who is in default of payment of Subscription Fees is permitted to or is capable of viewing the Services; and
(b) To such ESS Subscriber's whose name, complete address, CPE and, or, smart card number (other details of STB / CPE) have been disclosed to the Company.
6. Affiliate shall ensure that;
(a) Its CA and SMS systems should be able to handle individual Channels, packages, tiers, discounts, free offers, promotional offers etc. and
(b) The CAS and SMS must have the capability or recording activation/deactivation history in the system for at least the preceding 2 years.
(c) Affiliate will ensure permanent presence of its logo on all the Channels that are being received and redistributed through its platform for timely detection of the source of piracy in cable networks i.e. cable operator that are unauthorisedly downloading and redistributing the Channels in their network, using Affiliate’s platform.
7. The Affiliate shall not:
(i) Transfer, alienate or part with possession of the IRD and or viewing card to and in favour of any third party without prior written permission of the Company; and
(ii) Change, remove or shift the IRD and or viewing card from its authorised location i.e. the one recorded in the agreement without prior written approval of the Company.
(iii) In the event the IRD and or viewing card is/are transferred to any other location in contravention to the terms of the agreement, the agreement will be deemed to be terminated without prejudice to any other rights of the Company.
8. Affiliate shall keep and maintain up-to-date proper, true, fair and correct conditional access log, subscriber management system data, duly executed agreements, forms & contracts with the Subscribers, receipt books regarding payments from the Subscribers, books of accounts and records reflecting all transactions relating to the Services and authorizations of STB / CPE, in particular:
(a) Name, complete address, billing and payment details of all Subscribers; and
9. Affiliate shall have such subscriber management system (SMS) / billing system software & facilities in its system to ensure flexible in adapting and implementing any new schemes/ billing options/ payments modes/ plans etc. of the Company.
10. For the Technical audits mentioned in clause G (II) herein above, Affiliate shall make available all the above data, records, systems information and details for inspection and audit by the Company or representatives, auditors designated by the Company on reasonable notice to Affiliate, during normal business hours during the term of the Agreement and for one year after its termination. Provided further that neither the Company's acceptance of any such information or payment, nor the Company's inspection or audit of Affiliate's records or accounts shall prevent the Company from later disputing the accuracy or completeness of any payment made or information supplied. The Company and its representatives shall be entitled to visit all offices, head ends, control room and other locations (of Affiliate and, or, any of its sub operator) for any such inspection and audit. Affiliate undertakes to provide and cause to provide access all offices, head ends, control room and other locations (of Affiliate and, or, any of its sub operator) for any such inspection and audit by the Company or its representatives.
11. Affiliate shall, at the request of the Company, send a report in respect of systems, measures and compliances with above clauses, in accordance with the format and medium, electronic and hard copy, as may be specified by the Company from time to time. Such report shall be authenticated by the agencies / vendors providing conditional access (CA) software and Subscriber Management / Billing system software.
12. It is agreed that neither the Company's acceptance of any such information or payment, nor the Company's inspection or audit of Affiliate's records or accounts shall prevent the Company from later disputing the accuracy or completeness of the same. Provided that the Company submits reasons for disputing the same.
H. Reports
I. Affiliate will maintain at its own expense a subscriber management system (“SMS”) which should be fully integrated with the CAS (Conditional Access System).
II. Affiliate shall provide to the Company complete and accurate opening and closing subscriber monthly reports for the Company’s Channels and the tier and/or package containing Company’s Channels within seven (7) days from the end of each month in the format provided by the Company.
III. Such reports shall specify all information required to calculate the Monthly Average Subscriber Level (including but not limited to the number of Subscribers for each of Company’s Channel and each package in which a Company’s Channel is included) and the Licence Fees payable to the Company and shall be signed and attested by an officer of the Affiliate of a rank not less than Head of Department/Chief Financial Officer
I. Term
AS mutually agreed between Company and the Affiliate subject to a minimum of One (1) Year from the date of signing of the Agreement unless terminated earlier in accordance with the Agreement.
The Term of the Agreement may be extended on terms and conditions to be mutually agreed and recorded in writing between the parties.
J. Termination of Agreement
Either Party has a right to terminate this Agreement by a written notice, subject to applicable Law, to the other in the event of:
1. material breach of this Agreement by the other Party which has not been cured within thirty (30) days of being required in writing to do so;
2. the bankruptcy, insolvency or appointment of receiver over the assets of the other Party;
3. Affiliate’s registration or license to operate its service being revoked at anytime other than due to the fault of Affiliate.
Company shall have the right to terminate this Agreement by a written notice to Affiliate if
(i) Affiliate breaches any of the Anti Piracy Requirements and fails to cure such breach within ten (10) days of being required in writing to do so; or
(ii) Company discontinues the Channels with respect to all distributors in the Territory and provides Affiliate with at least ninety (90) days prior written notice.
Affiliate shall have the right to terminate this Agreement on written notice to the Company if Affiliate discontinues its services on Addressable Platform/business and provides at least ninety (90) days prior written notice.
K. Jurisdiction
The Governing Law shall be the Indian Law and TDSAT, shall have exclusive jurisdiction in respect of any dispute between the parties, arising out of /in connection with or as a result of the Agreement.
In terms of and subject to regulation 13.2A.5 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004, as amended from time to time, the above terms and conditions may be modified, at any time, by the Company.
