Sample Deal Memo for Content Marketing Agency and Brand (Assignment done as part of MICA Coursework. All rights reserved)

1.
WLAOB
DEAL MEMO ​for
CONTENT MARKETING
Team Details - Section A, Group 5
Aditya Gupta (008), Ayan Bairoliya (023), Amogh Deshmukh(013), Angad
Singh Bhullar (015), Ayushi Mona (024), Bhavya Singh
Bishnoi (027), Kajol Gupta (040), Prerna Singh(054),
Vasundhara Yadav(087), Siddhartha Singh (073)

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1. Deal Memo with Production House that makes content
Deal Term Description
Parties Party A​- Contentify Pvt. Ltd. (Contracting Party)
Party B​- ABC Production House (Contracted Party)
Address of Parties Party A​: MICA, Telav-Ghuma Road, Opp. Shela Village, Ahmedabad-380058
Party B: ​ABC Production House, Chincholi Bunder Road, Malad West,
Mumbai-400064
Deliverables Party A: ​Party A is responsible for the following under the agreement-
1. Party A shall supply scripts, storyboards, product props, production notes and
creative guidance/supervision, and related clearances, unless otherwise
required.
2. Temporary Intellectual Property rights will be provided during the course of
production of content subject to them being solely utilized for the purpose of
developing content. Under this agreement they will not be utilized in any other
format, be it for publicity or general communication without prior consent.
Party B: ​Party B is responsible for the following under the agreement-
1. Producer shall deliver the completed project media(s) pursuant to this
Agreement
2. Producer shall deliver to Party A consents, waivers or releases from all talent
and all persons or entities who have rendered services to Producer in
connection with the Specified Media(s) to the extent permissible by applicable
union or guild agreements
3. Producer shall supply everything else required for the delivery of the Specified
Media(s) unless exceptions are so noted
Delivery Details Delivery Type will be in the form of MP4 content and raw data along with any and all
creatives (including, video, audio, pictures, negatives, any other form of raw data)
created and conceptualized during the duration of production.
Production House shall be responsible for all expenses, taxes, licenses, fees or charges
incurred in performing its services under this Agreement.
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3.
Rights of
COMPANY
1. The company has the sole right to use and distribute the final produced content.
2. The company has the sole right to the IP and copyright.
3. The company holds the right to change or alter the creative brief and the final
product anytime during the production period.
4. The company has the right to intervene, seek clarifications and suggest changes
to the final produced video.
5. The company has the right to terminate the contract on notice.
Rights of
PRODUCTION
HOUSE
1. Production house has the right to endorse its work by utilizing Party A’s name
as part of their clientele.
2. Production House has the right for first refusal.
Payment Client understands that the specified terms of payment under this
Agreement are based upon timely cash payments within 30 days.Ownership of
the media does not transfer until full payment is made to Producer.
Payment is due on the 1st of each month in which services are to be performed for the
current month. Any work outside the services listed above must be pre-approved by the
Client in writing (for purposes of this Agreement, satisfactory evidence of email
agreement or approval shall be deemed agreement in writing, so long as confirmation of
email receipt is acknowledged by the party receiving such email in the form of an
affirmative email response). If Client chooses to defer paying any amount beyond the
date on which it is due, Client may be charged at the Producer’s discretion, as
additional consideration, an amount equal to the current prime rate +2% (as charged by
Producer’s bank from time to time) on unpaid amounts until paid, compounded
monthly.
Security/
Confidentiality
Producer understands that some information for said media(s) may be of a confidential
and/or sensitive nature. Producer agrees, at Party A’s written request, to require, within
reason, those engaged for the production to sign appropriate agreements not to discuss
or disclose information about the product or the Specified Media(s) except as such
disclosure may be necessary for Producer to produce media(s) in the usual and
customary manner under this Agreement.
Client Warranties Contracting Client represents and warrants:
Party A shall pay Producer within 30 days of deliverables noted in Payments section of
this Agreement. All talent union contracting forms (e.g. “Exhibit A’s”) and the filing
thereof with various union offices, in connection with such talent, is the direct
responsibility of the Client.
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4.
PRODUCER
WARRANTIES
Producer represents and warrants:
A. That Producer has full right to enter into this Agreement and to perform its
obligations hereunder and will comply with all applicable Federal, State and Local Laws,
ordinances and regulations and with all applicable union agreements to which Producer
is a signatory.
B. That Producer will use reasonable efforts to obtain all licenses, consents and rights
necessary and incident to the performance, reproduction and exhibition of the Specified
Media(s) with respect to materials, elements and services provided by Producer.
PAYMENT Client understands that the specified terms of payment under this Agreement are based
upon timely cash payments within 30 days. If Client chooses to defer paying any amount
beyond the date on which it is due, Client may be charged at the Producer’s discretion,
as additional consideration, an amount equal to the current prime rate +2% (as charged
by Producer’s bank from time to time) on unpaid amounts until paid, compounded
monthly. Ownership of the media does not transfer until full payment is made to
Producer.
INDEMNIFICATI
ON
Producer agrees to indemnify, defend, and hold harmless Client and its officers,
employees, agents and licensees from and against any and all claims, actions, damages,
liabilities and expenses, arising out of the breach of any obligation, warranty or
representation of Producer in this Agreement.
Contracting Client agrees to indemnify, defend, and hold harmless Producer and its
officers, employees, agents and licensees from and against any and all claims, actions,
damages, liabilities and expenses, arising out of the breach of any obligation, warranty
or representation of Contracting Client in this Agreement.
TAX LIABILITY Any sales tax, use tax, or other tax payable on production and delivery of Specified
Media(s) to Client(s) (other than sales tax arising from Producer’s purchases of
materials or supplies in connection with the production) shall be the responsibility of
Client who shall pay, defend and hold harmless Producer from payment of any such
taxes.
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5.
INSURANCE
COVERAGE
Client shall obtain, pay for and maintain Professional Liability (Errors and Omissions
Liability) insurance covering all intellectual property right infringement(s) that arise
from any and all uses of the media. Producer will be notified in writing prior to signing
this Agreement. Client will obtain and maintain insurance coverage with respect to
Agency/Client job(s) at no cost to Producer and name Producer and Director as a
“named insured” on said policies prior to the commencement of pre production. All
Agency/Client supplied insurance will be deemed to be the primary coverage and issued
on a non-contributory basis. Agency/Client Umbrella Liability limit will be
$10,000,000. Client will be responsible for any additional insurance premiums
resulting from the need to purchase special coverage not provided by the coverage and
pay any and all deductibles associated with Client insurance program. Client will
indemnify, defend and hold harmless Producer and Director for any and all claims,
demands, actions including defense costs and attorneys fees for claims arising from the
media(s) and the failure of the Agency/Client insurance program to be as broad as the
Producer’s coverage.
Contingency A. A contingency day is any day where a scheduled media/film shooting has been
prevented from occurring due to circumstances beyond the control of the production
company.
B. These circumstances may include but should not be limited to: (1) Weather
conditions (rain, fog, sleet, hail, or any adverse condition that is not consistent with the
prescribed shooting conditions desired by the Client). (2) Injury, illness, or absence of
client-supplied elements (e.g. key talent, color correct products).
Cancellation &
Postponement
A cancellation or postponement is defined as a rescheduling of the production to a later
specific date caused or directed by Client or a total cancellation of the project. If the
Production Company blocks out a specific period of time with the agreement that it
represents a firm commitment from the Client, then the Production Company makes no
further efforts to sell the time. If the job is canceled or postponed within the Guideline
time frame, it is unlikely that this time can be re- booked. It should be understood that
this time represents the Production Company’s only source of income.
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Cancellation and Postponement: Film or Digital Video Production:
A. If notice of cancellation/postponement is given to the Producer ONE TO TEN
WORKING DAYS prior to the commencement of the shoot, the Client will be liable to
the Production Company for: (1) All out-of-pocket costs; (2) Full director’s fee as bid;
and (3) Full production fee on the job as bid.
B. If notice of cancellation/postponement is given ELEVEN TO FIFTEEN WORKING
DAYS prior to the com- mencement of the shoot, the Client will be liable to the
Production Company for: (1) All out-of-pocket costs; (2) Not less than 50% of director’s
fee as bid; and (3) Not less than 50% of production fee on the job as bid.
C. If notice of cancellation/postponement is given MORE THAN FIFTEEN WORKING
DAYS prior to the commencement of the shoot, the Client will be liable to the
Production Company for: (1) All out-of-pocket costs; (2) Not less than 25% of the
director’s fee as bid; and (3) Not less than 25% of the production fee on the job as bid.
Cancellation and Postponement: CGI or Animation Production: ​A. If notice of
cancellation/postponement is given MORE THAN HALFWAY THROUGH the
production schedule of the job, that is between the award or start date and the final
delivery date, the Client will be liable to the Production Company for the full cost of the
job as a bid.
B. If notice of cancellation/postponement is given IN THE SECOND
(1) All out of pocket costs, including the expense of all staff and free-lance labor attached
to the project. This expense will include full payment through the original completion
date if that labor is not re-booked by the company, or, in the case of the free-lance labor,
not able to re-book itself on another project. (2) Full creative fees as bid. (3) Full
production fee on the job as bid.
C. If notice of cancellation/postponement is given IN THE FIRST QUARTER of the
production schedule of the job, that is between the award or start date and the final
delivery date, the Client will be liable to the Production Company for: (1) All out of
pocket costs, including the expense of all staff and free-lance labor attached to the
project. This expense will include full payment through the original completion date if
that labor is not re-booked by the company, or, in the case of the free-lance labor, not
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able to re-book itself on another project. (2) Not less than 50% of creative fees as bid. (3)
Not less than 50% of the production fee on the job as bid.
Made at ________________this day of ____________,2018
Name:
For and on behalf of company
Name:
For and on behalf of production house
2. Deal Memo with Platform Partner where content is published
Deal Term Description
Parties Party A- Contentify Pvt. Ltd. (Contracting)
Party B- XYZ Pvt. Ltd (Contracted party)
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8.
Licensed
Content
The following forms of content will be licensed to the platform:
● Image
● Text
● Logo
● Video
● GIF
● Jingle
● Music
● Background Score
● Sonic Brand
● Interviews
● Activations
● Presentations
● Punchline
● Games and/or gameplay video
● Merchandise ads
● VR content
● Brand Ambassador Collaterals
● Any other form of digital communication deemed as content by the Platform &
company
Licensed
Rights
● Non-exclusive, Non- transferable right to display, reproduce and distribute the
licensed content.
● Promotion of Licensed Content
● License to use the Licensor’s logos, trade names , trademarks, and service marks
(collectively, “Licensor Marks”)
● Territory
● Territory Exclusion
● Tune in information / E-commerce promotion to the extent required by third party
obligations.
● Content Protection and Geo Filtering
● Term
● Number of telecast/s
● Platform Partner shall have the non-exclusive right to either directly or indirectly,
broadcast and/or exploit the Licensed Programmes through any and all time slots
free and/ or pay Internet Protocol TV (“IPTV”) to residential households, hotels and
commercial establishments subscribers whether by fibre- to-the-home (FTTH),
broadband internet transmission, satellite transmission to Residential and
Commercial Subscribers. Such transmissions may be live or delayed.
Rights of
COMPANY
1. The company has the sole right to use and choose the distribution of the final
created content in terms of placement in a particular section of the website of the
Platform Partener for the purposes of protection of the Brand Image insofar as it is
deemed prejudicially affected.
2. The company has the sole right to the created IP and copyright over the created
concept. The clauses under the section of sub-licensing (mentioned below) are to be
referred to, in the case of any dispute.
3. The company has the right to intervene, seek clarifications and suggest changes to
the final published content at the time of publication.
4. The company reserves for itself the right to provide and change the destination
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links in the article for the marketing goals it deems fit.
5. The company holds the right to change or alter the final product anytime post
placement on the website. This may be done if the company deems an adverse effect
on its prospects due to ex-post unfavorable circumstances or to violation of laws
covered by but not limited to:
a.Indian Copyright Act 1957​ [to check plagiarism],
b.Consumer Protection act 1986​ section 2(r) [which covers unfair trade practice which
includes false advertisements and an equivalent can be to avoid fraudulent claims in
Content pieces),
c.Indian penal Code, 1806​ (provisions which prohibit obscene, defamatory publications
to statements creating or promoting disharmony or enmity in society
6. The company further reserves the right to amend the list of laws mentioned above
from time to time provided that it provides sufficient time to the platform partener
to incorporate the same with respect to the company content placed on the website.
7. The company has the right to enquire into the full spectrum of the results of its
marketing coverage in terms of impressions generated etc. which allows it to
safeguard its financial interests and assess the effectiveness of its funds as well as
the platform deployed. Any withholding of the said information will be considered
as a breach of contract.
8. With respect to the aforementioned point, Google Analytics reports will be
considered as the standard template of assessment unless notified otherwise. The
company reserves the right to take a call on the template of final assessment.
9. The company has the right to terminate the contract on notice; by keeping a notice
period deemed fair to both parties; however, the company has final call on the
same.
10. In case of removal of the content by the Platform Publisher (refer point 4 of the
rights of platform), the company reserves for itself the right to assess the financial
damages incurred and seek suitable compensation or demand republication post
modification of the original content.
Rights of
PLATFORM
1. The Platform partener has the right to endorse its work by utilizing Party A’s name
as part of their clientele.
2. The Platform partner has the right to suggest changes in the content. However, the
decision of the company in this regard is final.
3. The Platform partener has the right to monetise the content by way of advertising
on the said page and any other way it deems fit. However, the company reserves the
right to be intimated of the same in advance and reserves for itself the right of final
consent in so far as this is not prejudicial to the financial interests of the platform.
4. The Platform has the right to take the content down provided that it can show
sufficient cause; where sufficient cause refers to point 5 of the rights of the
company.
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5. In case of removal of the content, the platform has the right to either upload
content amended as per the list of laws mentioned in Point 5 of the rights of the
company or provide financial compensation basis the calculated loss in income
6. The figures provided by the Platform partener will be taken bona-fide as the basis
for the calculation for the financial loss in terms of forgone income unless deemed
prejudicial for the financial interests of the company.
7. The Platform Partener has the right to provide links as it deems fit in the company
content published for the purposes of redirection to other content insofar as it is not
deemed prejudicial to the interests of the company, where prejudicial to the
company’s interests is defined as but not limited to:
a) A content piece of the company’s competitors
b) A content piece supporting a Product Category which the company deems under the
purview of budget competition.
8. The Platform Partener has the merchandising rights in respect to the content
published provided that it provides a financial remuneration deemed as fair for the
use of Company IP.
Sub - licenses Unless expressly authorized by the company in writing, sub - licensing of any of the Rights
granted to the company herein is strictly prohibited.
This shall apply only for content which is owned or sub - licensed by the company.
However, content may be shared freely by individual members or organization owned pages
provided they link back to the original content uploaded by the company or duly give credits
without modifying content or brand logo in any form.
All right, title, license and interest, including all patent, copyright, trade secret, trademark
and other proprietary rights, it may have or lawfully claim in anything created or developed
by the Company under this agreement,shall be retained with the company and may only be
sub - licensed for the specific period and specific nature with no right of public
presentations and future client engagements unless expressly stated.
Warranties
and
Obligations of
Company
(Party A)
The company warrants that it is the right holder with the power to license the content
created by the company including its employees, contractual employees and agencies
affiliated to it for creating content.
The party A shall be creating content, engagement as well as ongoing management of these
Platforms as well as monitoring social media conversations and responding to the same and
managing all social media communication as more clearly elaborated in the pitch
presentation.
The company shall pay the appropriate fees as per the rates and payment scheme charged
by the platform for presenting content or any advertising. The Client agrees to pay Retainer
Fees against Invoices at the beginning of the month
for that particular month to the Platform partner. All other Invoices raised on the Client will
become payable
within 7 days from the date of all such Invoices
Warranties
and
The platform hereby represents, undertakes and warrants that the services provided by
under this Agreement does not violate/infringe, or shall not at any time during or after this
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Obligations of
PLATFORM
(Party B)
Agreement violate/infringe the intellectual property rights of the company as hereunto set
and created.
The platform is liable to take off any content that is abusive or inappropriate to any gender,
race, caste, communal group or is decreed inappropriate by the law prevailing in either
company’s nation of origin or the platform’s.
The services described in this Agreement shall be performed solely by Consultant and not
subcontracted, without Client’s written permission.
Consultant has the authority to enter into this Agreement and to perform all obligations
hereunder.
·
The Work Product and Company's Materials are and shall be free and clear of all
encumbrances including security interests, licenses, liens or other restrictions.
The use, reproduction, distribution or modification of the Work Product and Company's
Materials does not and will not violate the copyright, patent, trade secret or other property
right of any former client, employer or third party.
Miscellaneous
Provisions
a) This Agreement constitutes the entire agreement between the parties hereto in relation to
its subject matter and supersedes all prior agreements and understandings whether oral or
written with respect to such subject matter and no variation of this Agreement shall be
effective unless reduced to writing and signed by or on behalf of each Party.
b) In the event that any term, condition or provision of this Agreement is held to be in
violation of any applicable law, statute or regulation the same shall be deemed to be
severable from the other provisions of this Agreement and this Agreement shall be
construed as if such term, condition or provision had not been contained in this Agreement.
c) Neither Party shall be liable or responsible for any failure or delay to perform any of their
obligations under this Agreement when such failure or delay is due to Force Majeure, which
term shall include fire, riot, strike, lockout, war, civil commotion, accident, breakdown of
plant or machinery, flood, labour unrest, acts of God, omissions or acts of public
authorities,
changes in law, regulations or policies of the Government or any other reason beyond the
control of Parties.
d) Any notice to be given by either Party to this Agreement shall be in writing and shall be
deemed to be duly served if delivered by hand, prepaid registered post or through a delivery
service/courier at that Party’s address stated above or any other address which that Party
may have intimated the other Party for this purpose in accordance with the provisions of
this
clause.
e) This agreement does not constitute any partnership or joint-venture between the Parties
hereto and is an agreement on principal to principal and non-exclusive basis.
Assignment The Platform Partner shall have the right to assign its right and/ or obligations to collect
and store information about their websites, applications and services, as well as tools and
services running on those websites, applications and services, and to share that data with
third party service providers, such as analytics service providers. The Agreement further
allows Customers to collect, store and share data from and between their various third party
service providers.
This is a legal agreement (the “Agreement”) between you (“Partner,” “you” or “your’) and
the content marketing company stating the terms that govern the integration of your
application or service (“your Service” or the “Partner Service”) with the content marketing
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company and your subsequent interchange of data with the company.
Governing
Laws &
Jurisdiction
Indian courts can invalidate a choice of law clause if they perceive it as being opposed to
Indian "public policy"26. If the court decides that a foreign law has been chosen as the
governing law to evade provisions of mandatory Indian laws, the choice of law clause may
be ruled ineffective on the basis that it is opposed to Indian public policy.
In a 2008 decision, the Indian Supreme Court appears to have recognised a rule that, as a
matter of Indian public policy, Indian nationals contracting solely between themselves are
not permitted to contract out of the application of Indian law. This position of law appears
to have been reiterated by a 2012 decision of the Supreme Court. This rule extends even to
companies incorporated in India whose "central management and control" is located
outside India such as, for instance, wholly owned subsidiaries of foreign companies
Binding
Agreement
Every promise and every set of promises that forms the consideration for each other is an
agreement
1​. A contract may be defined as an agreement between two or more parties that is intended
to be legally binding. An agreement is formed when one party accepts the offer of another
and involves a meeting of the minds, which means agreeing to the same thing in the same
sense (consensus). Agreement subject to ratification by others who are not parties to it is
not a conclusive contract. All agreements are contracts if they are made by the free consent
of parties competent to contract in exchange of a lawful consideration and with a lawful
object, then such agreements are not expressly declared to be void​5​. If any of the following
is missing then an agreement is not formed and the contract shall not be legally binding.
Section 20 however talks about an agreement being void if both parties are under the
impression of mistake of fact. The Explanation to the Section however explains the
exception that an erroneous opinion as to the value of the thing which forms the
subject-matter of the agreement may not to be deemed to be a mistake of fact.
Made at ________________this day of ____________,2018
Name:
For and on behalf of company
Name:
For and on behalf of platform
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