CONSULTING SERVICES AGREEMENT
THIS
CORPORATE CONSULTING SERVICES AGREEMENT is entered into on this 26th day of
June, 2010, but having an effective date of June 1, 2010 (the “Effective
Date”).
BETWEEN:
Peacock
Media Ltd., a company incorporated under the laws of India and having its
address for notice and delivery located at 00X, Xxxxxx Xxxxxxxxxx Xxxxxx, Off
Mahakali Caves Road, Andheri East, Mumbai – 400093. India.
(the
“Consultant”);
OF THE FIRST
PART
AND:
TechMedia
Advertising Mauritius, a company incorporated under the laws of Mauritius
and having its address for notice and delivery located at x/x 00 Xxxxx Xxxxx
Xxxxxx, #00-00, Xxxxxxxxx 000000
(“TMM”);
OF THE SECOND
PART
(the
Consultant and TMM being hereinafter singularly also referred to as a “Party”
and collectively referred to as the “Parties” as the context so
requires.).
WHEREAS:
A.
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The
parties are each a party to a Joint Venture Development and Operating
Agreement (the “JV Agreement”), dated effective as of October 22, 2009
whereby TMM and PML agreed to form a new private Indian company (the “JV
Company”) where TMM would own 85% and PML would own 15%. The JV
Company will operate the business of displaying mobile digital advertising
platforms in public transportation vehicles such as long-distance buses
and trains in India (the “Business”). The newly-fitted buses
and trains will display third party commercial contents and advertisements
for a fee;
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B.
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the
JV Company has not been incorporated as of the date hereof, however, the
Business of the JV Company has been initiated by TMM and PML;
and
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C.
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The
parties have hence decided to amend the arrangement by PML assigning its
right and entitlement to receive 15% ownership of the JV Company to TMM
and PML assigning the License (as defined in the JV agreement) which is
currently being held in trust by PML for the benefit of TMM and such other
Company that is operating the Business (the Operating Company) in exchange
for TMM and the Operating Company engaging PML as a consultant in
accordance with the terms and conditions of this Consulting Agreement (the
“Agreement”), which among the other terms and conditions will provide PML
with compensation of 15% of the net profits of the Business of the
Operating Company for its services and obligations under this Consulting
Agreement; and
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D.
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Accordingly,
the ownership of the Operating Company shall be 100% in favour of
TMM. TMM wishes to retain the Consultant under this Agreement to
provide the Consultant Services (as hereinafter defined) to TMM and the
Business of the Operating Company.
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NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT THE PARTIES HERETO AGREE AS
FOLLOWS:
Article
I
SERVICES AND
RESPONSIBILITIES OF THE CONSULTANT
1.1
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Consultant
Services. The Consultant will provide such
services specified herein on a proactive basis or as TMM may request, from
time to time, in order to assist the Business of the Operating
Company. Together with such instructions and variations as TMM
may give, the Consultant will provide the following specific services and
functions to the Operating Company:
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(a)
with the
exception of the 4 years exclusive license (the “License”) granted to PML by the
Government of the state of Tamil Nadu, India as mentioned in Clause 6.3 (a) to
operate the Business, PML shall further assist to obtain a similar license from
the governments of the Indian states of Andhra Pradesh, Gujarat, Maharashtra,
Kerala and Karnataka, and any other Indian states possible (the “Participating
States”); PML will use its best efforts to secure licensing rights similar to
the License for all the Participating States, and insofar as possible, ensure
that the Operating Company is the contracting party and recipient of such
licenses. Where such licensing rights are granted the same shall be made
available to the Operating Company, subject to such consideration as may be
mutually agreed upon by PML and TMM, for its exclusive use on a first right of
refusal basis by the Operating Company;
(b)
make
available to TMM and the Operating Company such office and work facilities and
infrastructure as may be required by the Operating Company and TMM in order to
conduct the operations of the Business at the cost borne by the Operating
Company;
(c)
ensure
that its management, employees, contractors and sub-contractors cooperate at all
times with TMM and the Operating Company, as required, to conduct the
Business;
(d)
provide
TMM and the Operating Company with full access (including providing the names,
contact details and any introductions as may be necessary) to all existing
clients of PML in order for the marketing and commercialization of the
Business;
(e)
ensure
all existing and new clients procured for the Operating Company, insofar as
possible, enter into agreements directly with the Operating
Company;
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(f)
conduct
all marketing of PML’s services related to the Business to existing and future
clients of PML jointly with the Operating Company’s marketing for the herein
mentioned Business of the Operating Company in the conduct of the Business. It
is specifically agreed between the parties hereto that PML shall function as
Preferred Marketing Agency for all Business and shall give its best efforts to
secure the best advertising rates for the Business. PML forecasts
the future gross and net revenues accruing to TMM/TMI/Operating
Company from the Business shall be as illustrated hereunder:
US
Dollars
USD
(In Million.)
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FY Ending
March 2011
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FY Ending
March 2012
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FY Ending
March 2013
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|||||||||
Gross
Revenue
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29.50 | 54.00 | 98.00 | |||||||||
Agency
Commission (15%)
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4.43 | 8.10 | 14.70 | |||||||||
Net
Revenue
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25.07 | 45.90 | 83.30 |
Indian Rupees (based on fx
rate @ 46)
INR
(In Million.)
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FY Ending
March 2011
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FY Ending
March 2012
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FY Ending
March 2013
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|||||||||
Gross
Revenue
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1357 | 2484 | 4508 | |||||||||
Agency
Commission (15%)
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203.78 | 372.60 | 676.20 | |||||||||
Net
Revenue
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1153.22 | 2111.40 | 3831.80 |
(g)
promptly
provide TMM and the Operating Company with access to all information and
documents as may be required from time to time, to conduct the
Business;
(h)
continually
and actively use its best efforts to market the Business, and secure orders for
the Operating Company from existing and new clients;
(i)
be
responsible for the installation of the mobile digital advertising platforms
(the “Technology”) and for ensuring that on completion of the installation, the
Technology is fully functional;
(j)
be
responsible for the maintenance of the Technology, and for ensuring that once
installed, the Technology remains in good working order at all times. Provided
however that TMM or the Operating Company shall ensure at all times that there
are no delays in payment to PML so as to hamper the operations and in which case
PML shall not be held responsible;
-3-
(k)
conduct
and perform its obligations hereunder on such premises as it will determine,
including its own premises, and will permit access to the Operating Company’s
assets at all reasonable times for the purpose of inspecting work being done
thereon;
(l)
employ
and engage any such employees, agents and independent contractors as it may
consider necessary or advisable to carry out its duties and obligations
hereunder and in this connection to delegate any of its powers and rights to
perform its duties and obligations hereunder, but PML will not enter into
contractual relationships with a party without prior notification to the Board
of the Operating Company;
(m)
execute
all documents, deeds and instructions, do or cause to be done all such acts and
things and give all such assurances as may be necessary so that the Operating
Company has good and valid title to its assets, including the
License;
(n)
diligently
conduct and perform its obligations hereunder in accordance with the development
plans of the Business approved by the Board of the operating Company and in
compliance with all applicable laws, rules, orders and
regulations;
(o)
abide by
and adhere to the control standards as imposed by TMM, in its sole discretion,
in the Operating Company in the areas including but not limited to finance,
legal, operations and risk management.
(collectively,
the “Consulting
Services”).
Article
II
INFORMATION TO BE PROVIDED
BY TMM AND
THE OPERATING
COMPANY
2.1
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Information
to be made available. TMM and the Operating
Company agree to make available to the Consultant all corporate, financial
and operating information, Operating Company personnel or other
consultants, and other reasonable resources which are reasonably necessary
and sufficient to allow the Consultant to perform the Consulting
Services. The Consultant may provide TMM and Operating Company
information to legal and accounting advisers, and other persons, but that
such dissemination will be effected with proper prudence and subject to
such reasonable conditions and restrictions as TMM and the Operating
Company deem necessary or appropriate and subject to insider information
rules and restrictions. The Consultant will use such
information only for the purposes set out herein and for no competitive or
other purpose whatsoever.
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2.2
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Accuracy
of the information. TMM and the Operating Company
agree that it will bear sole responsibility for the accuracy and
completeness of the information provided to the Consultant, except for any
information created solely by the Consultant. The Company
represents and warrants that the information will be accurate and complete
in all material respects and not misleading and will not omit to state any
fact or information which would be material in its
estimation.
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2.3
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Material
change in information. TMM and the Operating
Company agrees to advise the Consultant promptly of any material change in
the affairs of the Operating Company or in any information provided to the
Consultant from the date at which such information is
given.
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Article
III
COMPLIANCE WITH
LAWS
3.1
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Consultant
Compliance Issues. The Consultant will comply with
all laws, whether federal, provincial or state, applicable to the
Consulting Services provided by it and, when requested by TMM and/or the
Operating Company, will advise the TMM and/or the Operating Company of any
particular compliance issues affecting any Consulting Services for which
the Consultant’s services have been
engaged.
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3.2
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Company
Compliance Issues. TMM and the Operating Company
will comply with all laws, whether federal, provincial or state,
applicable to the Consulting Services and the Operating
Company.
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3.3
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Insider
Issues. The Consultant will comply with all
reasonable endeavors of TMM and the Operating Company, industry practice,
and law and regulation to ensure that it affords security to information
of TMM and the Operating Company and that the Consultant, or any persons
with whom the Consultant works or with whom the Consultant deals, do not
employ information of TMM and/ or the Operating Company in any manner
contrary to law or fiduciary
obligations.
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3.4
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Trading. In
the event that the Consultant, or any person with whom the Consultant
works or with whom the Consultant deals, trades in TMM’s, or affiliates
securities, then the Consultant will employ reasonable prudence and good
market practice as to such trading and will effect such in compliance with
law.
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Article
IV
TERM, RENEWAL AND
TERMINATION
4.1
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Term. The
term of this Agreement (the “Term”) is for a period
of 4
years commencing on June 1, 2010 (the
“Effective Date”)
and terminating May 31, 2014.
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4.2
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Renewal. This
Agreement will renew automatically for subsequent one-year periods if not
specifically terminated in accordance with the following provisions.
Renewal will be on the same terms and conditions contained herein, unless
modified and agreed to in writing by the Parties, and this Agreement will
remain in full force and effect (with any collateral written amendments)
without the necessity to execute a new document. A Party hereto
determining not to renew agrees to notify the other Parties hereto in
writing at least 30 calendar days prior to the end of the Term of its
intent not to renew this Agreement (the “Non-Renewal
Notice”).
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4.3
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Termination. Notwithstanding
any other provision of this Agreement, this Agreement may be terminated by
a Party (a “Non-Defaulting Party”)
upon providing written notice to the other Party (the “Defaulting Party”)
if:
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(a)
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the
Defaulting Party fails to cure a breach of any provision of
this Agreement within 30 calendar days from its receipt of written notice
from the Non-Defaulting Party (unless such breach cannot be reasonably
cured within said 30 calendar days and the Defaulting Party is actively
pursuing curing of said breach);
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(b)
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the
Defaulting Party commits fraud or serious neglect or misconduct or illegal
act in the discharge of its respective duties hereunder or under the law;
or
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(c)
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the
Defaulting Party becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy, and
where any such petition is not
dismissed.
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4.4
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Effective
Date of Termination. Termination of this Agreement
will be effective as follows:
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(a)
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if
the Agreement is terminated by the provision of a Non-Renewal Notice
pursuant to section 4.2 above, on the expiry of the
Term;
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(b)
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if
the Agreement is terminated pursuant to section 4.3(a) above, on the
30th
calendar day from the day notice is given;
or
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(c)
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if
the Agreement is terminated pursuant to any of sections 4.3(b) or 4.3(c)
above, immediately upon TMM providing the Consultant with written
notice;
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Article
V
PURCHASE OF EXCLUSIVE
ADVERTISING RIGHTS FROM THE CONSULTANT FOR 10,392 TAMIL NADU STATE
BUSES
5.1
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The
Parties have agreed that for a period of 4 years the value of advertising
rights shall be Indian Rupees Nine Hundred And Twenty Million Only
(INR920,000,000) hereinafter referred to as the “Purchase Price”
corresponding to the Licensing period represented by
PML. Parties have also agreed to set aside a sum of an
additional Indian Rupees Two Hundred And Thirty Million (INR230,000,000)
as a contingency sum for the Business on a need to basis only. The Parties
shall on a best effort basis prudently avert and reduce the need of the
contingency fund as would be as practicable as
possible.
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5.2
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The
Purchase Price is exclusive of all applicable duties and taxes.
corresponding to the Licensing
period.
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5.3
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Parties
have assessed and agreed the value of the advertising rights based on the
estimated costs of the full installation of the equipment and software
(the “Technology ”) to operate the Business on the said
buses.
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5.4
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The
Parties agree that out of the Purchase Price of INR920,000,000
TMM has already remitted an amount of INR46,000,000 to PML. The balance
amount of INR874,000,000 shall be paid to PML in the following
manner:
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Amount (INR)
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Payable on/by (Due Date)
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92,000,000
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30-06-2010
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138,000,000
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31-08-2010
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276,000,000
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15-09-2010
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124,200,000
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01-04-2011
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124,200,000
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01-04-2012
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119,600,000
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01-04-2013
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5.5
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Agency
Commission PML
being the Preferred Marketing Agency for all Business shall be
entitled to and shall be paid by the Operating Company 15% of Gross amount
of sales billing as Agency Commission, for all advertising
business garnered by PML as increased by applicable taxes and
duties.
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The
Parties hereto understand and agree that this Agency Commission shall be
over and above the compensation of 15% of Net Profit of the Operating
Company as mentioned herein before in this
Agreement.
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5.6
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Sales
Invoicing & Remission thereof TMM
or TMI or the Operating Company shall invoice PML, for the amount invoiced
by PML in respect of sales generated by it on behalf of TMM, on month to
month basis. Such invoicing shall correspond to 85% of the total sales
invoiced by PML in any particular month in respect of the Business. PML
shall retain 15% of the collections as its Agency commission along with
the applicable taxes & duties in addition and the balance
amount shall be remitted to TMI/the Operating Company within a period of
not later than 90 days, as per industry credit terms ,of the submission of
the invoice by TMM/TMI/Operating Company. It is further understood and
agreed between the parties hereto that the first Invoice shall be raised
not before 1-7-2010 and thereafter monthly invoicing shall follow and
remission shall be made by PML in the desired time
frame.
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Article
VI
REPRESENTATIONS, WARRANTIES
AND COVENANTS
Representations
and Warranties of the Parties.
6.1
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Each
Party represents and warrants to the other Party hereto that, to the best
of its knowledge:
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(a)
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it
has full power and authority to carry on its business and to enter into
this Agreement and any agreement or instrument referred to or contemplated
by this Agreement, except where regulatory or shareholder approval may be
required;
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-7-
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(b)
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neither
the execution and delivery of this Agreement nor any of the agreements
referred to herein or contemplated hereby, nor the consummation of the
transactions hereby contemplated conflict with, result in the breach of or
accelerate the performance required by, any agreement to which it is a
party; and
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(c)
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the
execution and delivery of this Agreement and the Agreements contemplated
hereby will not violate or result in the breach of the laws of any
jurisdiction applicable or pertaining thereto or its constating
documents.
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6.2
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Each
Party covenants, warrants and agrees with the
other:
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(a)
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to
perform or cause to be performed its obligations and commitments under
this Agreement;
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(b)
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not
to engage either alone or in association with others in any activity in
respect of the Business of the Operating Company in India except as
mutually agreed to by the Parties
hereto;
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(c)
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to
be just and faithful in all its activities and dealings with the other
Party; and
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(d)
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any
information which the Parties may provide to each other or the Operating
Company or any permissible person or company will be accurate and complete
in all material respects and not misleading, and will not omit to state
any fact or information which would be material to the Parties or the
Operating Company or such permissible person or
company.
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6.3
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Representations
and Warranties of PML
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(a)
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PML
represents and warrants to TMM that the License permits PML to operate the
Business on more than 10,000 buses within the State of Tamil Nadu in
India;
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(b)
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PML
represents and warrants to TMM that the License already contributed to the
Business and being held in trust by PML for the benefit of TMM and the
Operating Company is free and clear of encumbrances of any nature and the
same will be assigned and contributed with full right, title,
and interest to the Operating Company and free of claims by any party
whatsoever, and no person has any agreement or option or any right or
privilege capable of becoming an agreement or option for any right to the
License subject to the condition that at any time during the subsistence
of this Agreement TMM or the Operating Company has not defaulted in
payment of Compensation or Agency Commission or any other amount to which
PML is entitled to receive from TMM or the Operating Company under this
Agreement;
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(c)
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PML
represents and warrants that all existing clients of PML will be given the
first right to procure the mobile digital advertising platforms services
from the Operating Company on arms’ length commercial rates and
terms. In the event that PML’s clients accept bundled services
from both PML and the Operating Company, PML agrees that all invoicing of
the clients for the bundled services will be handled via separate invoices
of the respective parties but submitted jointly;
and
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(d)
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PML
represents and warrants to TMM that all representations and warranties
made by PML herein and all information provided by PML or by PML’s
advisors, agents, employees, officers and representatives to TMM in the
course of the negotiations leading to the execution of this Agreement
were, when given, and remain, true and accurate in all material respects,
and are not misleading, and copies of all contracts and documents provided
by PML to TMM are true and complete and the contents of such contracts and
documents comprise the entire agreement between the parties
thereto. PML further represents and warrants that it is not
aware of any fact or matter not disclosed in writing to TMM which renders
any such information or representation untrue, incorrect, inaccurate or
misleading, or the disclosure of which may affect the willingness of TMM
to enter into this Agreement. If any of the representations and
warranties of PML are found to be incorrect or if there is a breach by PML
of any of the covenants or agreements, which incorrectness or breach will
result in any loss or damage sustained directly or indirectly by TMM, then
PML will pay the amount of the loss or damage to TMM within 30 days of
receiving notice of the loss or
damage.
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6.4
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Covenants.
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(a)
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PML
undertakes to use its best efforts to keep the License, and/or any other
licensing rights obtained from other Participating States or otherwise
(collectively, the “Licenses”), valid and in good standing at all
times. PML further undertakes that it will not assign,
transfer, encumber, pledge or hypothecate the Licenses, or do any act or
cause any omission which will in any way, directly or indirectly, result
in the loss of the Licenses, or affect the ability of the Operating
Company to conduct the Business or result in a reduction in revenue of the
Business. PML shall not undertake any act or enter into any
contract or agreement that may, or would, in any way adversely affect the
Licenses, and PML undertakes to notify TMM and the Operating Company in
writing if PML is in breach of its obligations under the Licenses or if
any of the Licenses are or may be adversely affected for any reason
whatsoever; and
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(b)
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The
covenants hereinbefore set out are conditions on which TMM has relied in
entering into this Agreement and PML will indemnify and save TMM harmless
from all loss, damage, costs, actions and suits arising out of or in
connection with any breach of such covenants by PML or any other
representations or obligations of PML contained in this
Agreement.
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Article
VII
INFORMATION AND ADVICE
CONFIDENTIAL
7.1
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Confidentiality. No
information furnished hereunder in connection with the Consulting Services
will be published by any Party without the prior written consent of the
other Party, but such consent in respect of the reporting of factual data
will not be unreasonably withheld, and will not be withheld in respect of
information required to be publicly disclosed pursuant to applicable
securities or corporation laws.
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-9-
7.2
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Confidential
Information. The Consultant will not, except as
authorized or required by the Consultant’s duties hereunder, reveal or
divulge to any person or companies any information concerning the
organization, business, finances, transactions or other affairs of TMM or
the Operating Company, or of any of its subsidiaries, or any other
confidential information of TMM or the Operating Company (collectively,
the “Confidential
Information”), which may come to the Consultant’s knowledge during
the Term, and the Consultant will keep in complete secrecy all
Confidential Information entrusted to the Consultant and will not use or
attempt to use any such information in any manner which may injure or
cause loss, either directly or indirectly, to TMM’s or the Operating
Company’s Businesses and will not use or permit the same to be used for
any purpose of the Consultant not in the pursuit of this Agreement or by
any competitor or third party. The Consultant will immediately
advise TMM or the Operating Company if it comes to the Consultant’s
knowledge that any party is employing the Operating Company’s Confidential
Information for purposes not authorized by this Agreement or by TMM or the
Operating Company and the Consultant will give TMM and the Operating
Company all reasonable assistance to protect the Confidential
Information,. This restriction will continue to apply after the
termination of this Agreement without limit in point of time but will
cease to apply to information or knowledge which may come into the public
domain through no effort or fault of the
Consultant.
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7.3
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Company’s
Property. The Consultant agrees
that:
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(a)
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all
Confidential Information and property, including without limitation, all
books, manuals, records, reports, notes, written and oral opinions and
advice, contracts, lists, technology and improvements patents, trademarks,
trade names, business and financial records and other documents
(collectively, the “Company’s Property”) furnished to or prepared or
developed by: (i) the Consultant in the course of or incidental to this
Agreement and the duties hereof; or (ii) the Operating Company, is for the
exclusive benefit of TMM and the Operating Company and is owned
exclusively by TMM or its designee;
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(b)
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during
the Term and thereafter, the Consultant will not contest the title to any
of the Company’s Property, in any way dispute or impugn the validity of
the Company’s Property or take any action to the detriment of TMM’s
interests therein;
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(c)
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the
Consultant will immediately notify TMM and the Operating Company of any
infringement of or challenge to any of the Company’s Property as soon as
the Consultant becomes aware of the infringement or
challenge;
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(d)
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upon
termination of this Agreement the Consultant will be promptly return the
Company’s Property to TMM or the Operating Company and will keep no copies
thereof, except as may be agreed in writing on agreed terms with TMM;
and
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-10-
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(e)
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during
the Term and thereafter, the Consultant will not, directly or indirectly,
except as required by the normal business of the Operating Company or
expressly consented to in writing by
TMM:
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(i)
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disclose,
publish or make available, other than to an authorized employee, officer,
or director of the Operating Company, any of the Company’s
Property;
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(ii)
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acquire,
possess for its own interest, sell, transfer or otherwise use or exploit
any of the Company’s Property; or
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(iii)
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permit
the sale, transfer, or use or exploitation of any of the Company’s
Property by any third party.
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7.4
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Consultant’s
Business Conduct. The Consultant warrants that it
will conduct its Consulting Services and other related activities in a
manner which is lawful and reputable and which brings good repute to TMM
and the Operating Company, the Consultant and the Business
interests. In this regard the Consultant warrants to provide
all Consulting Services in a sound and professional manner such that the
same meets superior standards of performance quality within the standards
of the industry or as set by the specifications of the Operating
Company.
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Article
VIII
INDEMNIFICATION AND LEGAL
PROCEEDINGS
8.1
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Indemnification. Each
Party agrees to indemnify and save the other, its affiliates and their
respective directors, officers, employees and agents (each an “Indemnified Party”)
harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatsoever nature or
kind, including any investigation expenses incurred by any Indemnified
Party, to which an Indemnified Party may become subject by reason of
breach of this Agreement or of law by the defaulting
Party. Specifically, but not to derogate from the forgoing but
for certainty for the comfort of the Consultant, TMM agrees to indemnify
the Consultant for any actions, losses, proceedings, or other harm
suffered, including legal costs as incurred, in the service of the
Operating Company except only where such harm was suffered by the
Consultant primarily as a consequence of its own grossly negligent or
unlawful conduct.
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8.2
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Claim
of Indemnification. The Parties hereto agree to
waive any right they might have of first requiring the Indemnified Party
to proceed against or enforce any other right, power, remedy, security or
claim payment from any other person before claiming this
indemnity.
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8.3
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Notice
of Claim. In case any action is brought against an
Indemnified Party in respect of which indemnity may be sought, the
Indemnified Party will give prompt written notice of any such action of
which the Indemnified Party has knowledge and the indemnifying Party will
undertake the investigation and defense thereof on behalf of the
Indemnified Party, including the prompt employment of counsel acceptable
to the Indemnified Party affected and the payment of all
expenses. Failure by the Indemnified Party to so notify will
not relieve the relevant Party of such relevant Party’s obligation of
indemnification hereunder unless (and only to the extent that) such
failure results in a forfeiture by the relevant Party of substantive
rights or defenses.
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8.4
|
Settlement. No
admission of liability and no settlement of any action will be made
without the consent of each of the Parties hereto, such consent not to be
unreasonable withheld.
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8.5
|
Legal
Proceedings. Notwithstanding that the indemnifying
Party will undertake the investigation and defense of any action, an
Indemnified Party will have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel will be at the expense of the Indemnified Party
unless:
|
|
(a)
|
such
counsel has been authorized by the indemnifying
Party;
|
|
(b)
|
the
indemnifying Party has not assumed the defense of the action within a
reasonable period of time after receiving notice of the
action;
|
|
(c)
|
the
indemnifying Party and the Indemnified Party will have been advised by
counsel that there may be a conflict of interest between the Parties;
or
|
|
(d)
|
there
are one or more legal defenses available to the Indemnified Party which
are different from or in addition to those available to the indemnifying
Party.
|
Article
IX
FORCE
MAJEURE
9.1
|
Events. If
either Party hereto is at any time during this Agreement prevented or
delayed in complying with any provisions of this Agreement by reason of
strikes, walk-outs, labour shortages, power shortages, fires, wars, acts
of God, earthquakes, storms, floods, explosions, accidents, protests or
demonstrations by environmental lobbyists, delays in transportation,
breakdown of machinery, inability to obtain necessary materials in the
open market, unavailability of equipment, governmental regulations
restricting normal operations, shipping delays or any other reason or
reasons beyond the control of that Party, then the time limited for the
performance by that Party of its obligations hereunder will be extended by
a period of time equal in length to the period of each prevention or
delay.
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9.2
|
Notice. A
Party will within seven calendar days give notice to the other Party of
each event of force
majeure under section 8.1 hereinabove, and upon cessation of such
event will furnish the other Party with notice of that event together with
particulars of the number of days by which the obligations of that Party
hereunder have been extended by virtue of such event of force majeure and all
preceding events of force
majeure.
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Article
X
DEFAULT AND
TERMINATION
10.1
|
Default. The
Parties hereto agree that if either of the Parties is in default with
respect to any of the provisions of this Agreement (hereinafter referred
to as the “Defaulting
Party”), the non-defaulting Party (hereinafter referred to as the
“Non-Defaulting
Party”) will give notice to the Defaulting Party designating such
default, and within thirty (30) business days after its receipt of such
notice, the Defaulting Party will
either:
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|
(a)
|
cure
such default, or diligently commence proceedings to cure such default and
prosecute the same to completion without undue delay, with notice to the
Non-Defaulting Party of the procedures it has instigated to cure;
or
|
|
(b)
|
give
the Non-Defaulting Party notice that it denies that such default has
occurred and that it is submitting the question to the appropriate
tribunal.
|
If
default is not addressed appropriately in the form required by (a) above, or
cured within 30 days of a tribunal’s finding of default, then the Non-Defaulting
Party may terminate this Agreement at any time, without prejudice to any claims
it may have for an accounting or damages.
Article
XI
NOTICE
11.1
|
Notice. Each
notice, demand or other communication required or permitted to be given
under this Agreement will be in writing and will be delivered to the other
Party, at the address for such Party specified above. The date
of receipt of such notice, demand or other communication will be the date
of delivery thereof. Transmission by facsimile, with electronic
confirmation, will be considered
delivery.
|
11.2
|
Change
of Address. Either Party may at any time and from
time to time notify the other Party in writing of a change of address and
the new address to which notice will be given to it thereafter until
further change.
|
Article
XII
GENERAL
PROVISIONS
12.1
|
Entire
Agreement. This Agreement constitutes the entire
agreement between the Parties hereto and supersedes every previous
agreement, expectation, negotiation, representation or understanding,
whether oral or written, express or implied, statutory or otherwise,
between the Parties of this
Agreement.
|
12.2
|
Enurement
and Assignment. This Agreement will enure to the
benefit of and will be binding upon the Parties, their respective heirs,
executors, administrators and permitted assigns. This Agreement
may not be assigned as to any part by any Party without the permission in
writing of the other Party.
|
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12.3
|
Time
of the Essence. Time will be the essence of this
Agreement and it is specifically understood by the Parties hereto that any
delay in payment of Purchase Price to PML shall, at the option of PML, be
construed as a material breach in terms of this
Agreement.
|
12.4
|
Applicable
Law and Despute Resolution. This Agreement will be
governed exclusively by and construed and enforced in accordance with the
laws of India.
|
|
If
a dispute arises out of or in connection with this Agreement, or in
respect of any defined legal relationship associated therewith or derived
there from, the Parties have irrevocably agreed to seek an amicable
settlement of the dispute through conciliation under the Rules of
Conciliation of the Arbitration and Conciliation Tribunal of the
Federation of Indian Xxxxxxxx of Commerce and Industry (FACT). The
authority to appoint 2 conciliators shall be FACT and FACT will provide
administrative services in accordance with the FACT Rules of
Conciliation.
|
12.5
|
Invalid
Provisions. If any provision of this Agreement is
at any time unenforceable or invalid for any reason it will be severable
from the remainder of this Agreement and, in its application at that time,
this Agreement will be construed as though such provision was not
contained herein and the remainder will continue in full force and effect
and be construed as if this Agreement had been executed without the
invalid or unenforceable provision.
|
12.6
|
Severability
and Construction. Each Article, section,
paragraph, term and provision of this Agreement, and any portion thereof,
will be considered severable, and if, for any reason, any portion of this
Agreement is determined to be invalid, contrary to or in conflict with any
applicable present or future law, rule or regulation in a final
unappealable ruling issued by any Court, agency or tribunal with valid
jurisdiction in a proceeding to which any Party hereto is a party, that
ruling will not impair the operation of, or have any other effect upon,
such other portions of this Agreement as may remain otherwise intelligible
(all of which will remain binding on the Parties and continue to be given
full force and effect as of the date upon which the ruling becomes
final).
|
12.7
|
Warranty
of Good Faith. The Parties hereto warrant each to
the other to conduct their duties and obligations hereof in good faith and
with due diligence and to employ all reasonable endeavours to fully comply
with and conduct the terms and conditions of this
Agreement.
|
12.8
|
Representation
and Costs. It is hereby acknowledged by each of
the Parties hereto that, as between TMM and the Consultant, Xxxxxx Xxxxx
XxxXxxxx Law Corporation, acts solely for TMM and that the Consultant has
been advised to obtain independent legal advice with respect to this
Agreement and that it has consulted with or has had the
opportunity to consult with independent counsel of its own
choice concerning this Agreement and that it has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it
freely based on his own judgment.
|
12.9
|
Consents
and Waivers. No consent or waiver expressed or
implied by either Party in respect of any breach or default by the other
in the performance by such other of its obligations hereunder will be
valid unless it is in writing, be relied upon as a consent to or waiver of
any other breach or default of the same or any other obligation or
constitute a general waiver under this Agreement, or eliminate or modify
the need for a specific consent or waiver in any other or subsequent
instance.
|
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12.10
|
Counterparts. This
Agreement may be signed by the Parties hereto in as many counterparts as
may be necessary, each of which so signed will be deemed to be an
original, and such counterparts together will constitute one and the same
instrument and notwithstanding the date of execution will be deemed to
bear the execution date as set forth on the front page of this
Agreement.
|
IN
WITNESS WHEREOF the Parties hereto have hereunto set their hands and
seals in the presence of their duly authorized signatories effective as at the
date first above written.
The
CORPORATE SEAL of
|
)
|
|
TECHMEDIA ADVERTISING
MAURITIUS,
|
)
|
|
was
hereunto affixed by:
|
)
|
|
)
|
||
|
)
|
|
Authorized
Signatory
|
)
|
|
/s/ Xxxxxxx Xxx Xxx Xxxxx
|
)
|
|
(Xxxxxxx
Xxx Xxx Xxxxx)
|
)
|
|
DIRECTOR
|
||
The
CORPORATE SEAL of
|
)
|
|
PEACOCK MEDIA
LTD.,
|
)
|
|
was
hereunto affixed by:
|
)
|
|
)
|
||
|
)
|
|
Authorized
Signatory
|
)
|
|
/s/ Sandeep Xxxxxx Xxxxxx
|
)
|
|
(Sandeep
Xxxxxx Xxxxxx)
|
)
|
|
Chairman
and Managing Director
|
||
Witness:-
|
||
Signature: /s/
Xxxxxx Xxxx Xxxx Xxxx
|
||
Name: Xxxxxx
Xxxx Xxxx Xxxx
|
-15-