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 direct to home platform w.r.t. Commercial Subscribers (which term is defined hereunder). Party applying for interconnection shall be hereinafter referred to as "DTH Operator".
A. Scope
This RIO is for supply of signals by DTH Operator to Commercial Subscribers (hereinafter referred to as “Subscribers” or “ESS Subscribers”) as under:
(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
(iv) 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 (hereinafter referred to as “Public Viewing Area”).
B. A-la-carte & Bouquet Rates for DTH Platform*
| Tariff per set top box per month (INR) | ||||
| Subscription for | 5 Star , 5 Star Deluxe/ 5 Star Super Deluxe/ 5 Star Palaces & Heritage Hotels | 4 Star Hotels | 3 Star Hotels | Any non-star commercial establishment with 50 plus rooms providing boarding and lodging facility |
| ESPN | 135 | 135 | 115 | 115 |
| Star Sports | 135 | 135 | 115 | 115 |
| Star Cricket | 100 | 100 | 75 | 75 |
| ESPN and Star Sports | 200 | 200 | 160 | 160 |
| ESPN and Star Cricket | 180 | 180 | 140 | 140 |
| Star Sports and Star Cricket | 180 | 180 | 140 | 140 |
| ESPN, Star Sports and Star Cricket | 250 | 250 | 210 | 210 |
| Tariff per Public Viewing Area (PVA) per month (INR) | ||||
| Subscription for | 5 Star , 5 Star Deluxe/ 5 Star Super Deluxe/ 5 Star Palaces & Heritage Hotels | 4 Star Hotels | 3 Star Hotels | Any non-star commercial establishment with 50 plus rooms providing boarding and lodging facility |
| ESPN | 5000 | 5000 | 3000 | 3000 |
| Star Sports | 5000 | 5000 | 3000 | 3000 |
| Star Cricket | 5000 | 5000 | 3000 | 3000 |
| ESPN and Star Sports | 7500 | 7500 | 5000 | 5000 |
| ESPN and Star Cricket | 7500 | 7500 | 5000 | 5000 |
| Star Sports and Star Cricket | 7500 | 7500 | 5000 | 5000 |
| ESPN, Star Sports and Star Cricket | 9000 | 9000 | 6000 | 6000 |
C. Payment Terms
1. DTH Operator 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 DTH Operator under the agreement.
2. For the purpose of calculating subscription fees payable to the Company, subscriber number of a channel for the month would be considered as the subscriber number of the subscribers subscribing to the Channel(s) on the last date of the previous month.
3. DTH Operator shall provide, in writing, a complete and true list of all ESS Subscribers i.e. name, complete address of each subscriber (including city and state), unique Subscriber ID, Set Top Box number(s) and the Viewing Card number(s),of all ESS subscribers (the "Subscriber Report"). The Subscriber Report should clearly mention the number of Public Viewing Areas and their name, complete address (including city and state), unique Subscriber ID, Set Top Box number(s) and the Viewing Card number(s).The Subscriber Report shall be provided in accordance with the format and medium, electronic and hard copy, or as may be specified by the Company from time to time. The Subscriber Report shall be authenticated by the agencies / vendors providing conditional access software and Subscriber Management / Billing system software. The Subscriber Report shall be provided by DTH Operator to the Company at the time of the execution of the agreement and every month during the Term within seven (7) days from end of every calendar month.
4. Based on the above, Company shall raise an invoice on the DTH operator. In case the DTH operator fails to send the report within the said period of seven days, Company shall have the right to raise a provisional invoice and the DTH operator 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 DTH operator for the immediately preceding month. On receipt of the report from the DTH operator, the parties would conduct reconciliation between the provisional invoice raised by the Company and the report sent by the DTH operator.
5. All amounts due and payable by DTH Operator shall be paid by DTH Operator to the Company within 15 days of receipt of the invoice. DTH Operator shall be liable to pay to the Company all amounts due and payable irrespective of whether the ESS Subscribers have actually paid such amounts to DTH Operator or whether any such ESS Subscribers are active or have been deactivated by DTH Operator.
6. All payments from DTH Operator to the Company under the agreement shall be:
(i) exclusive of all applicable taxes, levies 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 DTH operator’s cost and will be charged at the prevailing rates by the Company to the DTH operator.
(ii) Exclusive of other charges and net of any bank charges or transfer or similar fees; and
(iii) 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. DTH Operators 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 DTH Operator 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 DTH Operators to the Company under the agreement;
(iii) Any other payments statutorily required to be made by DTH Operators 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). The imposition and collection of interest on late payments does not constitute a waiver of the DTH operator’s obligation to pay the License Fee by the Due Date, and Company shall retain all of its other rights and remedies in this connection.
8. 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 DTH operator shall provide tax withholding certificates to Company within such period as has been specified in the Income Tax Act/ Rules/ Notifications/ Circulars issued thereunder.
9. Any discounts or similar offerings made by DTH Operator to its Subscribers in respect of the Services shall be at the sole cost and expense of DTH Operator. It is clarified that DTH Operator's obligations to pay the Subscription Fee to the Company shall be in accordance with the Subscription Fee Plan specified by the Company.
10. In the event that the Company is of the opinion, based upon its information, that the numbers of ESS Subscribers who are receiving the Services are more than the ESS Subscribers declared by DTH Operator under the Subscriber Report, the Company may call upon DTH Operator to pay the increased Subscription Fee (based on higher number of ESS Subscribers). DTH Operator undertakes to pay the increased Subscription Fee immediately thereupon without any delay or demur.
11. The Subscription Fee shall be payable in full by DTH Operator to the Company irrespective of the basis of payment by the Subscribers to DTH Operator.
12. The company reserves the right to determine and specify the Subscription Fee plan, on the basis of which the DTH Operator shall sell the Service to its subscribers, from time to time. DTH Operator shall be liable to pay to the Company the entire amount of Subscription Fee based on the Subscription Fee Plan specified by the Company. The current Subscription Fee Plan is that DTH operator shall sell the Service to its subscribers on an annualized basis only’.
13. Subject to the terms and conditions contained herein, the DTH Operator shall provide access to the content/ channels of the Company on a non-discriminatory basis.
D. Security and Anti Piracy Requirements
1. DTH Operator 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 DTH Operator without any tampering with regard to time, location, duration, colour and frequency;
(ii) Finger Printings (both covert and overt) shall be provided by DTH Operator 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 DTH Operator. 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 ESS Subscribers) of the DTH Operator 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 DTH Operator.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 DTH Operator, subject to applicable TRAI regulations.
2. DTH Operator 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. DTH Operator 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 DTH Operator with the view to under declare the total number of ESS Subscribers under the agreement).
3. DTH Operator undertakes to de-authorize or disconnect any STB / CPE, within ten (10) minutes of receiving of information, in writing or by email or fax, from the Company, in the event such STB / CPE is involved or used in piracy of the Services in any manner whatsoever.
4. In the event DTH Operator 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 mention in the above clause, Company shall be entitled to discontinue the Service(s) in accordance with TRAI’s applicable regulation.
5. The Company and its representatives shall be entitled to visit all offices, head ends, control room and other locations (of DTH Operator and, or, any of its sub operator) for any inspection, verification or other purposes mentioned hereinabove.
6. DTH Operator shall, subject to the provisions hereof, ensure that the Services is provided to and received only through Addressable System:
(a) By such ESS Subscribers who have paid the full applicable Subscription Fees in respect thereof and no ESS 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.
7. DTH Operator 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) DTH Operator 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 DTH Operator’s platform.
8. The DTH Operator 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.
(iv) Use/provide the set top box signed for the rooms in Public Viewing Area.
9. DTH Operator 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
10. DTH Operator 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.
11. DTH Operator 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 DTH Operator, 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 DTH Operator and, or, any of its sub operator) for any such inspection and audit. DTH Operator undertakes to provide and cause to provide access all offices, head ends, control room and other locations (of DTH Operator and, or, any of its sub operator) for any such inspection and audit by the Company or its representatives.
12. DTH Operator 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.
13. 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.
E. Term of Agreement
2 years
F. 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:
(i) 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;
(ii) the bankruptcy, insolvency or appointment of receiver over the assets of the other Party;
Company shall have the right to terminate this Agreement by a written notice to DTH operator if:
(i) DTH operator breaches any of the Security and Anti Piracy Requirements and fails to cure such breach within ten (10) days of being required in writing to do so; or
(ii) The DTH licence or any other material licence necessary for DTH operator to operate its DTH service being revoked at anytime.
(iii) Company discontinues the Channels with respect to all distributors in the Territory and provides DTH operator with at least ninety (90) days prior written notice.
DTH operator shall have the right to terminate this Agreement on written notice to the Company if DTH operator discontinues its DTH business and provides at least ninety (90) days prior written notice.
G. 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.
