VENDOR / BUYER’S TERMS AND CONDITIONS
By clicking “I Agree”, You consent to being bound by the Terms and Conditions hereinafter appearing.
This document is an electronic record in terms of Information Technology Act, 2000 and rules made there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures and the same has been incorporated by reference in the Vendor / Buyer Agreement (defined below).
There Terms and Conditions form a part of the Vendor / Buyer Agreement between Filmboard Movies Technologies Private Limited, a company incorporated under the Companies Act, 1956, with its registered office at Aston, 10th Floor, Lokhandwala, Andheri West, Mumbai – 400053 (“Company / Filmboard”)and You, the vendor (“Vendor”).
The Company and the Service Provider are hereinafter collectively referred to as the “Parties” and individually as “Party” as the context may require;
WHEREAS the Company operates an online “Platform” known as www.filmboardmovies.com in order to facilitate transactions between producers / production houses (“Buyers”) and Service Providers (falling in any of the categories and sub-categories as listed on the Platform).
AND WHEREAS the Service Provider provides the services as listed on the Platform.
AND WHEREAS both the Parties are desirous of entering into this Vendor Agreement in order to determine the rights and obligations of the Parties whereby in lieu of Services provided by the ServiceProvider to the Vendor / Buyer (“Buyer”), the Company will receive a share of the total consideration payable (“Aggregate Fees”)by the Buyer to the Service Provider, in the form of a fee (“Transaction Charges”), and furthermore, the remaining balance after deducting the Commission shall be paid to the Service Provider (“Fees”), on the terms and conditions as mentioned in this Agreement.
NOW THE PARTIES HAVE ENTERED INTO THIS AGREEMENT ON THE BASIS OF MUTUALLY AGREED COVENANTS AS MENTIONED IN THE AGREEMENT:
This Agreement shall commence from You agreeing to these Terms and Conditions and continue until Your profile is LIVE on the Platform (“Term”), unless terminated by either Party as per the covenants of this Agreement.
2. OBLIGATIONS OF THE SERVICE PROVIDER
The Service Provider shall perform all the Services and obligations as listed on the Platform under the specific (hereinafter collectively referred to as the ‘Services’)
3. GENERAL TERMS AND CONDITIONS
3.1 The Company shall receive payment of Aggregate Fees from the Buyer on behalf of Service Provider in lieu of Services provided by the Service Provider to the Buyer.
3.2 The Company shall deduct its Transaction chargesfrom the Aggregate Fees and pay the remaining sum (“Fees”) to the Service Provider.
3.3 The Company shall receive Transaction charges as specified in the Annexure A or as may be mutually agreed between the Parties.
3.4 The Service Provider shall coordinate with the employees of the Company to successfully deliver the Services.
3.5 The Service Provider agrees and acknowledges that the Services shall be reviewed by the Company from time to time during the Term.
3.6 The Service Provider agrees and confirms that it/he/she shall perform its obligations under this Agreement as per the instructions of the Company and / or its authorized representatives.
3.7 The Service Provider shall co-ordinate and communicate with the Buyers of the Company and work and perform its obligations as per the specifications in Annexure A, provided that the Company is at all times informed of any such association between the Service Provider and the Buyer.
3.8 The Service Provider hereby represents and warrants that it has full legal right and authority to enter into this Agreement and that the Company shall be entitled to enforce the performance of the Service Provider’s obligations, representations and warranties under this Agreement and that the Company be indemnified by the Service Provider against any claims, costs, charges, damages and reasonable legal fees incurred or suffered or caused to be suffered in connection with the above and with any error or omission / commission / negligence caused by the Service Provider.
3.9 Save as provided herein, the Service Provider agrees to be bound by the existing legal framework of India.
3.10 The Buyer hereby agrees and understands that the Company is not making any express guaranties with respect to the fitment of the Service Provider for the specific purpose of the Buyer. The Buyer may conduct his own due diligence prior to proceeding with engagement of the Service Provider.
3.11 The Buyer agrees and acknowledges that the Buyer may enter into a separate agreement with the Service Provider with respect to the Services and shall ensure that the Company is the confirming party on such an agreement.
3.12 The Buyer and the Service Provider hereby agree and acknowledge that the Company shall on a best effort basis assist the Buyer and Service Provider with respect to their association but shall not be solely responsible for the performance of the obligations by either Party.
The terms of consideration shall be as per “Annexure-A”mutually discussed between the Buyer and the Service Provider. The same shall be exclusive of all applicable taxes. Tax at Source shall be deducted as applicable. The Company shall pay the Fees payable to the Service Provider on assurance of delivery of the services by the Service Provider to the Buyer, only pursuant to the receipt of the Fees from the Buyer. The payment shall be made by the Company to the designated account of the Service Provider.
5.1 Both Parties shall have the right to terminate this Agreement if:
5.1.1 The other Party commits a material breach of any of its obligation and such breach is not rectified within fifteen (15) days of intimation;
5.1.2 An event of Force Majeure which substantially prevents the Service Provider from performing its obligations under this Agreement for such period as determined by the Company, then in such a case this Agreement may be terminated at the option of the Company. For the purpose of this Agreement, the terms Force Majeure shall include such events/ circumstances which are beyond the reasonable control including but not limited to, applicable Laws, fires, floods, tsunami, explosions, epidemics, pandemics, diseases, accidents, acts of God, threat of wars, riots, strikes, lockouts, or other concerted acts of workmen, acts of Government, terrorist attacks etc. due to which the performance of any of its obligations under this Agreement is prevented, restricted, delayed or interfered with. Each Party agrees to use all reasonable efforts to enable performance under this Agreement to resume forthwith upon completion of such Force Majeure events.
5.2 In case of breach of any provisions of this Agreement by the Service Provider, the Service Provider shall cure such breach within such time as communicated by the Company, failing which this Agreement shall get automatically terminated, unless otherwise communicated by the Company in writing. In the event, the Service Provider becomes incapable of performing its obligations; the Company shall have the right to terminate this Agreement forthwith.
5.3 Further, it is hereby agreed between the Parties hereto that this Agreement may be terminated mutually at any time, if agreed by both the Parties in writing by giving thirty (30) days’ written notice to the other Party with or without assigning any reason thereto.
5.4 The Parties hereto agree that on termination of this Agreement, all outstanding obligations shall be complied hereunder by both the Parties.
6. CONFIDENTIAL INFORMATION
Both Parties shall maintain strict confidentiality in relation to any business, research, trade etc. information whether written, oral, electronic and / or in any other form about each other and/ or its clients, the contents of this Agreement and of the Services rendered by the Service Provider under this Agreement, specifically the entire brief of services provided by the Service Provider. This clause shall survive even after the termination / expiry of this Agreement. Any passing on of such confidential information to any third party which results in a considerable loss (whether monetary or goodwill) to either Party, shall force the aggrieved Party to approach the court of law for protection of its interest. Additionally, without the prior written consent of the Company, the Service Provider agrees not to issue or release any articles, advertising, publicity or other matter relating to any Confidential Information, except as may be required by law.
The obligations of confidentiality shall not apply to any information that:
- was developed independently by the Parties;
- was known to the receiving party prior to its disclosure by the disclosing Party;
- has become generally available to the public (other than by virtue of its disclosure by the receiving Party);
- was required to be disclosed in order to comply with any law, order, regulation or ruling, provided that before making such disclosure, the disclosing Party must notify in writing the other Party owning such confidential information.
The Company may use the names of the Buyer and the Service Provider, pursuant to the works, finished product (film
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Services shall be commissioned by the Buyer on “work for hire” basis. And hence the Buyer shall be the first owner of all the Services, Deliverables, its component, products, results including but not limited to the raw and final versions of the Services and the same shall be delivered to the Buyer [whether used/ or unused by the Buyer]. The Service Provider is hereby being commissioned by the Buyer to perform the Services and hence, all rights in the Services shall solely vest in the Buyer, in perpetuity, all over the world. The Buyer shall have the sole right to use and exploit the same, in any manner, medium, mode, platform (now know or invented in future) whether commercially/non-commercially, whether directly/indirectly including but not limited to for its channels, internet sites, mobile, advertisement, promotion, show, programme etc., (as deemed fit by the Buyer). The Service Provider shall not transfer/assign/license/grant any form of rights in the above to any third party at any time, during or after the expiry of the Term. Any attempt to register the Deliverables either in Service Provider’s name either directly or through any third person or through an alias/pen-name/pseudo name with any professional/amateur body whether in India or abroad, or usage of the Deliverables (in part or whole) on any social networking sites, blogs, by third party etc., shall be a breach of this Agreement and shall render the Service Provider liable to indemnify the Company and the Buyer.
7.2 Either Party shall not in any manner whatsoever tamper or cause any loss or damage to the Intellectual Property of the other Party. The Intellectual Property of each Party shall include the brands, brand-names, logo, trademark andcopyright,.
The Buyers and Service Providers are hereby urged to inform the Company with immediate effect, in the event any Party initiates an offline conversation.
The Service Provider Party shall indemnify the Company and its group/holding/affiliate/subsidiary companies and their directors, employees, officers and representatives against all losses, claims, damages of whatsoever suffered (including but not limited to legal costs and fees of the advocate) by the Company due to breach/negligence/default on part of Service Provider, whether under contract, strict liability, indemnity, tort (including negligence), or otherwise for any special, incidental, indirect, exemplary, punitive or consequential damages of any kind arising from, including but not limited to business interruption or loss of profits, business opportunities, or goodwill or any other cause whatsoever.
10. ASSIGNMENT AND REMEDIES
11. NON-COMPETITION AND NON SOLICITATION
10.1 The Service Provider shall not directly or indirectly offer and /or perform its Services and / or engage, either directly or indirectly, with any Buyer of the Company for a period of 3 (three)years from the date of termination of this Agreement or for a period of 3 (three) years from the date the last Services were delivered for the Buyer whichever is later.
10.2 The Service Provider shall not promote or sell to a Buyer of the Company, or provide lead of such a Buyer for, the services of any other person or entity that offers services identical or similar to any one or more of the Company services for a period of 3(three)years from the date of termination of this agreement or for a period of 3 (three) years from the date the last Services were delivered for this Buyer, whichever is later.
10.3 The Service Provider shall not solicit for employment nor employ (either as an employee, contractor, independent agent and /or representative of the Service Provider) any of the employees of the Company that have worked with the Service Provider on any project for a period of 3 (three) year(s) from the date of termination of this Agreement or for a period of 3(three) year(s) from the date the last Services were delivered by the Service Provider, whichever is later.
12. RELATIONSHIP BETWEEN PARTIES
The relationship between the Parties shall be on a ‘Principal to Principal basis’ and the Service Provider shall follow all rules, regulations, policies and structure as laid down by the Company. Neither Party shall act as an agent, joint ventures, partners, agents or other representatives of the other Party.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed and enforced in accordance with the applicable laws of India. Any disputes or differences arising out of this Agreement shall be subject to the exclusive jurisdiction of the competent Courts of Mumbai, India.
In the event of any dispute or difference arising between the Parties hereto or as to the rights and obligations under this Agreement or as to any claim, monetary or otherwise of one Party against the other or as to the interpretation and effect of any terms and conditions of this Agreement, such dispute or difference shall be negotiated in good faith and the Parties shall endeavor to resolve the matter amicably. However, if the Parties fail to resolve the dispute within thirty (30) days of the receipt of written notice of the Dispute by a Party from the Party raising the Dispute, then the dispute shall be referred to Arbitration of a sole Arbitrator if agreed upon otherwise the Arbitrator shall be appointed as per the provisions of the Indian Arbitration and Conciliation Act, 1996, as amended. The venue for such Arbitration shall be in Mumbai, India. The award of the Arbitrator shall be final and binding on both the Parties.
This Agreement shall be renewed by mutual consent of both Parties and on the basis of freshly negotiated terms and conditions.
Nothing contained herein shall be amended by the Parties hereto except by mutual consent of both the Parties in writing.
16. TIME OF ESSENCE
Unless otherwise stated, time shall be of essence for the purpose of the performance of obligations of the Parties under this Agreement.
Service Provider cannot use the Company’s trademarks or logos at its website, in its promotional materials, presentations etc. without prior consent of the Company.
18. ELECTRONIC EXECUTION
These Terms & Conditions are being executed electronically and each Party recognizes that the same is validly executed under the Information Technology Act, 2000 and shall form a binding agreement between the Parties and no Party shall claim invalidity of these Terms and Conditions merely on the grounds that these Terms and Conditions are being executed electronically. For the aforementioned purposes, the Parties hereby agree that these Terms and Conditions are being concluded and executed at Mumbai.
As specified under the listings on this Platform under every Service Provider.
1. The terms of payment for any Services would be governed by the terms mentioned in the Service Provider’s profile on the Platform or as per the specific payment terms agreed upon between the Buyer and Service Provider in writing.
2. The Company will be entitled to receive a Transaction charge of 10% (plus GST or other applicable taxes) from Service Provider on all transactions conducted on the Platform. The Company may change and revise the said Commission rate in future upon giving prior intimation to the Service Provider.
3. All taxes applicable as per any prevailing laws, rules or regulations will be deducted on the gross taxable value for any booking made for Services provided by Service Provider before the amount is paid to Service Provider electronically.
4. All cancellations of any bookings done by the Buyer would be treated as per the cancellation policy specified in the profile of the Service Provider on the Platform. The Service Provider must specify the cancellation policy, in clear and legible language, on its profile on the Platform, so that the Buyer is aware about the cancellation charges before booking.
5. The Fees to the Service Provider will be released to the bank account of the Service Provider as conveyed to the Company.
6. For all the enquiries/leads/booking requests received through Filmboard’s Platform, the bookings must be made through the online Platform only, and no side/offline deals shall be conducted outside the Platform. If any such side/offline deals are discovered, appropriate action may be taken by Company accordingly.