Terms and Conditions,
The Indian advertising market as a whole is regulated and controlled by a non-statutory body, the Advertising Standards Council of India (ASCI). In the absence of uniform integrated legislation, it is necessary for advertisers to ensure that an advertisement is in compliance will all local and national advertisement laws.
1.1 The ASCI Code: Self-Regulation of Advertising
To regulate advertisement in India, ASCI has adopted a Code for Self-Regulation in Advertising (“ASCI Code“), which applies to all involved in the commissioning, creation, placement, or publishing of advertisements. This ASCI Code applies to advertisements read, heard, or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to a significant number of consumers in India.
Though non-statutory, the ASCI Code is recognized under various Indian laws in addition to being adopted by advertising-industry bodies.
1.2 Laws: Statutory Regulation of Advertising
Complementing the ASCI Code are Indian laws governing specific media, specific populations, and specific goods and services. The most significant of these laws are listed here.
Laws Governing Media
- The Press Council Act 1978
- Cable Television Network Rules, 1994
- Code for Commercial Advertising on Doordarshan and All India Radio
- Electronic Media Monitoring Centre (EMMC)
- Norms for Journalist Conduct issued by the Press Council of India
- Code of Conduct of the News Broadcasters Association
Laws Protecting Society and the Consumer
- Emblems and Names (Prevention of Improper Use) Act, 1950
- Young Persons (Harmful Publications) Act, 1956
- Companies Act, 1956
- Standards of Weight & Measures Act, 1976
- Indecent Representation of Women (Prohibition) Act, 1986
- Consumer Protection Act, 1986
- Laws related to intellectual property rights
- The Drugs and Cosmetic Act, 1940
- The Transplantation of Human Organs Act, 1994
- The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954
- The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
- Advocates Act, 1961
- Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
- Securities and Exchange Board of India Act, 1992
- The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
- Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
- Public Gambling Act, 1867, the Lotteries (Regulation) Act, 1998 and the Prize Competitions Act, 1955
- Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
- The Food Safety & Standards Act, 2006
2 Products and Services Banned from Advertising
The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“Tobacco Prohibition Act“) prohibits all direct and indirect adertising of tobacco products in all media.
2.2 Human Organs
The Transplantation of Human Organs Act, 1994: This law provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs. This law prohibits any advertising inviting persons to supply, offering to supply, any human organ for payment.
2.3 Magical Remedies
The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 prohibits advertisement of magical remedies of diseases and disorders.
2.4 Services for Pre-Natal Determination of Sex
The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits advertisements relating to pre-natal determination of sex.
2.5 Infant formula
Advertising forbidden in order to encourage natural feeding of infants. Any food which is represented as compliment to mother’s milk to meet the growing nutrition needs of the infant, should be after age of four months.
2.6 Prize Chits and Money Circulation Schemes
The Prize Chits and Money Circulation Schemes (Banning) Act, 1978 prohibits advertisements relating to prize chit2 and money circulation schemes.
Under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, issued under the Indian Medical Council Act, 1956, physicians are not allowed to advertise their services in any form or manner of advertising through any mode, as soliciting of patients directly or indirectly, by a physician, by a group of physicians, or by institutions or organizations is unethical. (A physician refers to a doctor with a qualification of MBBS or MBBS with a postgraduate degree/diploma or with an equivalent qualification in any medical discipline.) However, medical practitioners are allowed to make a formal announcement in press regarding the following:
- On starting practice
- On change of type of practice
- On changing address
- On temporary absence from duty
- On resumption of another practice
- On succeeding to another practice
- Public declaration of charges
2.8 Legal Services
The Bar Council of India Rules formulated under the Advocates Act 1961 strictly enforce the advertisement ban and publicity rules governing law firms’ websites. These rules were enacted and enforced to curb the false advertisement of lawyers to gain publicity to attract clients.
3 Regulations Related to Product and Service Advertising
3.1 Alcohol (Beer, Wine, and Spirits)
The Cable Television Network Rules, 1994, the Advertising Codes of Doordarshan, and the All India Radio and Norms for Journalist Conduct issued by the Press Council of India prohibit any advertisement directly or indirectly promoting the production, sale, or consumption of cigarettes, tobacco products, wine, liquor, or other intoxicants. However, some states allow advertising through billboards, signboards etc. but subject to many restrictions. Also, the ASCI Code prohibits use of minors for advertising alcohol products.
3.2 Professionals such as Chartered Accountants, Company Secretaries & Cost Accountants
These professionals are prohibited from soliciting clients or professional work by advertisement. However, they may issue advertisements about their firm or services of their firm, through any mode of transmission, having inter alia details of names of partners, address and website, telephone, mobile, e-mail, fax number of the member, year of establishment, additional recognized qualifications, languages spoken by the partner(s), honours or awards in the field of teaching, research, authorship etc.
3.3 Firearms, Weapons, and Ammunition
Sale and purchase of such items requires a license from government authorities. Therefore, advertisements related to such products are not permissible in India under the Arms Act, 1959.
As per the Food Safety & Standards Act, 2006, no advertisement relating to the standard, quality, quantity or grade-composition, and no representation concerning the need for, or the usefulness of any food can be made which is misleading or deceiving or which contravenes the provisions of this law or rules and regulations made thereunder.
3.5 Infant Milk Food
The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 prohibits the advertising of infant milk substitutes or feeding bottles.
3.6 Gaming (gambling, games of chance; differentiate between private-sector and “state” lotteries)3
The federal structure in the Constitution of India explicitly gives the States the right to legislate upon “gambling and betting”. The Public Gambling Act, 1867 prohibits gambling activities in India. However, the Public Gambling Act permits games of mere skill. In April, 2011, the Information Technology Act, 2000 was also amended to ban Internet gambling and online betting websites. The Lotteries (Regulation) Act, 1998 gives power to the concerned State government to hold lotteries subject to prescribed conditions. Under section 294-A of the Indian Penal Code, advertisements of a lottery unless it is in accordance with the Lotteries (Regulation) Act shall be punishable.
The Prize Competitions Act, 1955controls and regulates prize competitions in certain parts of India and prohibits the advertisement of unauthorized prize competitions.
3.7 Medical Devices
The authority principally responsible for regulating medical devices in India is the Central Drugs Standard Control Organization (“CDSCO“) under the provisions of the Drugs & Cosmetics Act, 1940. CDSCO’s functions include regulating the medical devices industry by approving for import, manufacture and sale of medical devices in India.
3.8 Medical Services
An institution run by a physician for a particular purpose such as a maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution etc. may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees. Please also see 2.7 above.
3.9 Nutritional Supplements: It is regulated under the Food Safety and Standards Act, 2006.
3.10 Occult (“Psychic”) Services
These services are not legally recognized in India and are not permissible under the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954
3.11 Pharmaceuticals (over-the-counter and prescription medications)
The phrase over-the-counter (OTC) has no legal recognition in India. All the drugs not included in the list of “prescription-only drugs” are considered to be non-prescription drugs (or OTC drugs). Prescription-only drugs are those medicines that are listed in Schedules H and X of the Drug and Cosmetics Rules, 1945.
3.12 Tests and Lab Analysis
The Drugs and Cosmetic Act, 1940 prohibits advertisements for any drug or cosmetic from using reports of tests or analysis of the Central Drugs Laboratory or by a government analyst.
3.13 Political Candidates, political platforms, political parties, political issues
The Representation of the People (Amendment) Act, 1996 has the following provisions relating to advertisements:
- prohibit advertisements for a period of forty-eight hours ending with the hours fixed for conclusion of polling for any elections in a given polling area.
- use of displaying posters, signboards etc. for political advertisement in any public place strictly in accordance with the relevant provisions of the local laws.
- equitable opportunity to all political parties and candidates to have access to public advertisement space for election related advertisements during the election period.
- use of private premises for political advertisement only with the voluntary permission of the occupant.
- prohibition of any and all advertisements at the cost of the public exchequer regarding achievements of the political party/ruling government.
The statute provides for a penalty of imprisonment and/or fine for anyone, including advertisers, who contravenes these provisions.
3.14 Products Related to Sexuality (condoms, ED drugs, etc.)
Advertisements related to sexuality are allowed with the provision that there should not be any indecent representation of women under the Indecent Representation of Women (Prohibition) Act 1986. Products must comply with the Drugs and Cosmetic Act 1940 and other certification rules under the Cable Television Network Rules 1994.
Under the Cable Television Networks Rules 1994, Advertising Codes of Doordarshan & All India Radio and Norms for Journalist Conduct issued by the Press Council of India, advertisement based on religion or to hurt religious sentiments are not allowed. Also, such advertisement may be punishable under Indian Penal Code 1860.
The Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 issued under section 30 of the Securities and Exchange Board of India Act, 1992 prohibits fraudulent or unfair trade in securities. These regulations further provide that dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves an advertisement that is misleading or contains distorted information and which may influence the decision of the investors.
3.17 Sexual Services
Advertisement pertaining to sexual services is illegal in India.
3.18 Tobacco Products (cigarettes, cigars, snuff, pipe tobacco)
Please see para 2.1 above.
There is no specific restriction on the advertisement of toys provided they are in compliance with other applicable laws.
3.20 Advertisement by Companies
The Companies Act 1956stipulates that no deposits from the general public should be accepted by public companies (other than non-banking financial companies) without issuing advertisement following the prescribed norms. The Companies Act has also specified various provisions relating to advertisement by Indian companies.
3.21 Advertisement Relating to Packaged Goods, etc.
The Standards of Weight & Measures Act, 1976 prohibits issuing advertisements otherwise than in accordance with the provisions of this law.
4. Regulations Related to Advertising Methodology
4.1 Advertising to Children (advertising during and immediately before and after children’s programming)
The Young Persons (Harmful Publications) Act, 1956 prohibits advertisements relating to any harmful publication i.e., any publication that tends to corrupt a young person (person under the age of 18 years) by inciting or encouraging him or her to commit offenses or acts of violence or cruelty or in any other manner whatsoever.
According to the ASCI Code, advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental, or moral harm or which exploits their vulnerability. For example, advertisements may not:
- Encourage minors to enter strange places or to converse with strangers in an effort to collect coupons, wrappers, labels or the like
- Feature dangerous or hazardous acts which are likely to encourage minors to emulate such acts in a manner which could cause harm or injury
- Show minors using or playing with matches or any inflammable or explosive substance; or playing with or using sharp knives, guns, or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks, or other injury
- Feature minors in promoting tobacco or alcohol-based products
- Feature personalities from the field of sports, music, or cinema for products which, by law, either require a health warning in their advertising or cannot be purchased by minors.
4.2 Celebrity Endorsements
No current restrictions.
4.3 Comparative Advertising (ads that compare the advertiser’s product to that of a competitor)
The provisions pertaining to comparative representation were part of “Unfair Trade Practice” under the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act). After repeal of the MRTP Act, the provisions relating to unfair trade practices were inserted in the Consumer Protection Act, 1986. However, a business entity cannot claim relief against unfair comparative advertising under the Consumer Protection Act, as a business entity is not a consumer. This can be taken up only by consumer associations, the central government, or state governments, and it does not provide protection to the business entity equal to the protection under the MRTP Act. Thus, under the existing law, a manufacturer whose goods are disparaged has no standingto seek a remedy. Presently, in the absence of any specific legislative regulating comparative advertising, disputes are decided by various courts on the basis of the facts in each case. However, ASCI code (which is made part of the Cable Television Network Rules, 1994 as well) permits advertisement containing comparisons including those where a competitor is named in the interests of vigorous competition and public enlightenment, provided:
- It is clear what aspects of the advertiser’s product are being compared with what aspects of the competitor’s product.
- The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.
- The comparisons are factual, accurate and capable of substantiation.
- There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared.
- The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.
Presently, ASCI is actively taking action against any advertisements making unsubstantiated claims, exaggeration, unfair denigration in violation of ASCI Code.
4.4 Contests (games of chance and games of skill)
The Public Gambling Act, 1867 prohibits gambling activities in India. However, the Public Gambling Act permits games of mere skill.
4.5 Deceptive or Misleading Advertising
Deceptive or misleading advertisements are restricted under the various legislations including the Consumer Protection Act, 1986; Cable Television Network Rules, 1994; Norms for Journalist Conduct issued by the Press Council of India Act and ASCI Code.
4.6 Surrogate Advertising
The ASCI Code provides that advertisements of products whose advertising is prohibited or restricted by law or by the ASCI Code must not circumvent such restrictions by purporting to be advertisements for other products the advertising of which is not prohibited or restricted by law or by ASCI Code. To determine if there is an indirect advertisement of prohibited products due attention shall be given to the following:
- Visual content of the advertisement must depict only the product being advertised and not the prohibited or restricted product in any form or manner:
- The advertisement must not make any direct or indirect reference to the prohibited or restricted products
- The advertisement must not create any nuances or phrases promoting prohibited products
- The advertisement must not use particular colours and layout or presentations associated with prohibited or restricted products
- The advertisement must not use situations typical for promotion of prohibited or restricted products when advertising the other products.
The Cable Television Networks Rules, 1994 has also imposed similar restrictions to curb surrogate advertising.
4.7 Advertorials and Disguised Ads
The Norms for Journalist Conduct issued by the Press Council of India, Cable Television Network Rules, 1994 and Advertising Code of Doordarshan requires that advertisements must be clearly distinguishable from news content carried in the newspaper.
4.8 False Advertising
False advertisements are restricted under the various legislations including the Consumer Protection Act, 1986; Cable Television Network Rules, 1994; Norms for Journalist Conduct issued by the Press Council of India Act and ASCI Code.
4.9 “Free” Gifts/Samples
The Consumer Protection Act 1986, Section 2 (3) (a) states that (i) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole, or (ii) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, is an unfair trade practice.
The Norms for Journalist Conduct issued by the Press Council of India has stated that gift including those given by the advertisement agencies for publication of material relating to their clients or otherwise should not be accepted by the journalist.
4.10 Free Speech (specific limitations, e.g. personal slurs, defamation, political statements)
Article 19(1)(a) of the Constitution of India protects the right to freedom of speech and expression, which is also extended to advertisements. However, like any other right, this freedom is also subject to reasonable restrictions imposed by Article 19(2) of the Constitution of India.
Furthermore, the ASCI Code states that no advertisement shall be permitted which:
- Derides any race, caste, color, creed, or nationality
- Tends to incite people to crime or to promote disorder and violence or intolerance
- Presents criminality as desirable or directly or indirectly encourages people, particularly minors, to emulate it or conveys the modus operandi of any crime
- Adversely affects friendly relations with a foreign state
4.11 Length, Volume, and Frequency of Commercials
The Telecom Regulatory Authority of India has issued the Standard of Quality of Service (Duration of Advertisements in Television Channels) Regulations, 2012, which regulates the duration of broadcasting an advertisement and the length of the commercial. Main features of these regulations are as under:
- advertisements exceeding twelve minutes in a clock hour and any shortfall of advertisement duration in any clock hour shall not be carried over by any broadcaster in any broadcast of its programme.
- The time gap between end of one advertisement session and the commencement of next advertisement session shall not be less than fifteen minutes (thirty minutes in case of a movie). However, this restriction is not applicable to live broadcast of a sporting event.
4.12 Nutritional Claims
The nutritional claims by the advertiser for selling their product undergo a keen check by the Food Safety and Standards Authority of India which is the country’s food regulator under the provisions of the Food Safety & Standards Act, 2006. This regulatory body restricts any kind of false nutritional claims made by the companies and restricts them from broadcasting on television.
4.13 Rights of Privacy
Electronic Media Monitoring Centre of Ministry of information & Broadcasting, Government of India made the self-regulatory guidelines applicable to the Broadcasting Service Provider to protect the privacy of an individual.
4.14 Regional Public and/or Community Standards
Under the various legislations including Cable Television Network Rules, 1994; Norms for Journalist Conduct issued by the Press Council of India Act and ASCI Code, no advertisement to hurt community or any section of society is allowed. Also, such advertisements are punishable under Indian Penal Code 1860.
4.15 Sex in Advertising
The Indian Penal Code 1860 prohibits obscene publications. Further, the Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representations of women.
Sponsorship by products which are banned from advertising is restricted to provide any kind of sponsorship. Also, and misleading representation of sponsorship is an unfair trade practice under the Consumer Protection Act, 1986.
4.17 Subliminal Advertising
There are no laws defining subliminal advertising or to restrict such practice. Although misleading advertisements are banned and restricted.
4.18 Sweepstakes Offers
No current restriction. However, any offer to deceive the consumers is restricted from advertising and a proper legal action will be taken against them.
Any testimonial must be true failing which appropriate actions can be taken by ASCI and under the Consumer Protection Act 1986.
4.20 Use of a Public Person’s Image or Name
No advertisement should be in violation of Emblems and Names (Prevention of Improper Use) Act, 1950.
4.21 Use of Children in Advertising
No current restrictions but other applicable laws need to be followed.
4.22 Use of Foreign Language in Advertising
No current restrictions but other applicable laws need to be followed.
4.23 Use of Models as Doctors, Nurses, Lawyers, or other Professionals
There are no restrictions on the use of models as doctors, nurses, or lawyers; however, there should be no misleading or controversial advertisement.
4.24 Violence in Advertising
Cable Television Network Rules, 1994, Norms for Journalist Conduct issued by the Press Council of India Act, Advertising Code of Doordarshan and ASCI Code prohibits any violence in advertisement.
5 Regulations Related to Media Channels
5.1 Billboard Advertising
Outdoor advertisement through billboards is regulated by jurisdictional municipal corporations. The content of the advertisement should however be in accordance with ASCI Code and other applicable laws.
5.2 Digital Media Advertising (websites, online advertising, Social Media Advertising)
Online advertisement and website content including social media sites such as Facebook and Twitter must comply with a range of marketing, consumer, privacy, and contract laws. Online advertisers should comply with ASCI, the Indian Penal Code, the Information Technology Act, 2000 and other applicable laws. For this purpose, the Information Technology Act was amended in 2011.
5.3 Direct Mail Advertising or Email Advertising (Spam)
Currently, no regulation exists specific to this. However, any such advertisement has to be in compliance with the ASCI Code and other applicable laws.
5.4 Newspaper Advertising
The Press Council of India constituted under the Press Council of India Act 1978 has issued Norms for Journalist Conduct, a reference guide for the press. These norms include advertising norms similar to provisions in the ASCI Code and prohibit, inter alia, advertisements that are vulgar; advertisements promoting cigarettes, tobacco products, wine, liquor, and other intoxicants; advertisements hurting religious or communal sentiments; or any advertisement prohibited by any other law. Also, ASCI approached the Press Council of India to incorporate the ASCI Code into its regulations.
5.5 Periodical Advertising (regularly published print media: magazines, journals, newspapers)
The term “newspaper” under the Press Council of India Act means any printed periodical work containing public news or comments on public news and includes such other class of printed periodical work as may, from time to time, be notified in this behalf by the Central Government in the Official Gazette. Any periodical which is a newspaper as defined above has to comply with Norms for Journalist Conduct issued by Press Council of India.
5.6 Radio & Doordarshan Advertising
The Code for Commercial Advertising on Doordarshan and All India Radio4: All advertisement on Doordarshan and All India Radio (“AIR“) should conform to the code issued by Director General of each Doordarshan and AIR respectively. These codes have also mandated compliance to the ASCI Code and in general prohibit any advertisement containing the following:
- Criticism of friendly countries
- Attack on religions or communities
- Incitement to violence or anything against maintenance of law and order
- Contempt of court
- Aspersions against the integrity of the president and judiciary
- Anything compromising the integrity of the nation
- Criticism by name of any person
5.7 Telemarketing and SMS Marketing
Any person or legal entity engaging in the activity of telemarketing or bulk Short Message Servicing(SMS) is required to register itself with Telecom Regulatory Authority of India (TRAI) and must comply with the guidelines laid down by TRAI in this respect.
5.8 TV Advertising
The advertising code issued under the Cable Television Network Rules, 1994 require advertising carried on the cable service to conform to the laws of the country and not to offend morality, decency, or religious sensibilities of the subscribers. The rules make the ASCI Code compulsory for television and state that no advertisement which violates the ASCI Code shall be carried on the cable service. Under the rules, no advertisement shall be permitted though cable services which:
- Derides any race, caste, color, creed, or nationality
- Is against any provision of the Constitution of India
- Tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way
- Presents criminality as desirable
- Exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary
- In its depiction of women, violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women
- Exploits social evils like dowry, child marriage
- Promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants. However a product that uses a brand name or logo which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised subject to prescribed conditions
- Promotes infant milk substitutes, feeding bottles, or infant food5
- Be wholly or mainly of a religious or political nature or be directed towards any religious or political end
- Contain references which hurt religious sentiments
- Endanger the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner.
- Promote goods or services that suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986
- Contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality which is difficult to prove
- The picture and the audible matter of the advertisement shall not be excessively “loud”.
- Contain indecent, vulgar, suggestive, repulsive or offensive themes
- All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz, use of lower part of screen to carry captions, static or moving alongside the programme.
- No programme shall carry advertisements exceeding twelve minutes per hour, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of a channel’s self-promotional programmes.
5.9 News Broadcasters Association Regulations: News Broadcasters Association(“NBA“) represents the private television news & current affairs broadcasters in India. NBA presently has 20 leading news and current affairs broadcasters (comprising 45 news and current affairs channels) as its members. According to News Broadcasting Standards Regulations (NBA Regulations) issued by NBA any broadcast (which includes advertisement) should be in compliance with NBA’s code of conduct. NBA’s code has made procedure for compliant against broadcaster who in breach inter alia of the following:
- Depiction of violence or intimidation against women and children;
- Sex and nudity;
- Endangering national security; and
- Refraining from advocating or encouraging superstition and occultism.
Last updated: 05.June.2018
- “Ad(s)” means the text, graphics, rich media, video and/or audio material (and combination thereof) that is displayed on Digital Media Inventory.
- “Affiliate” means a corporation or other entity of which Client has ownership, directly or indirectly, of fifty percent (50%) or more of the voting stock or equivalent interest in such corporation or entity.
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- “Digital Media Inventory” means the digital media inventory sold or acquired through the Service Platform.
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- “NAI Code” means the set of self-regulatory privacy principles for third-party ad serving created and agreed to by the coalition of third-party ad serving companies referred to as the Networking Advertising Initiative (“NAI”) and posted at http://www.networkadvertising.org/ (or any successor site).
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- enter and otherwise provide accurate and complete information to BPRISE, the Service Platform, Campaign QA Service, and Trading Service;
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- be prohibited from uploading or otherwise introducing into the Service Platform any Ad with creative that includes or promotes pornography, violence, racism, hate, illegal drugs, illegal weapons, adware, malware, bit torrent, illegal file sharing, or that BPRISE considers in good faith to be offensive or otherwise inappropriate;
- Client shall ensure that:
- The following Prohibited Content is not sold via the Service Platform.
- Counterfeit Goods: BPRISE prohibits the sale or promotion for sale of Counterfeit Goods.
- Dangerous Goods: BPRISE prohibits the sale, promotion for sale or landing pages of products that cause damage, harm or injury.
- Products or Solutions enabling dishonesty: BPRISE prohibits the sale, promotion for sale or landing pages of Hacking Software, Fake Documents, Academic Cheating or generally any products that promote dishonesty.
- Inappropriate Content: BPRISE prohibits the sale, promotion for sale, landing pages of products that spread hatred, intolerance, discrimination, violence or any inappropriate behaviour
- Adult oriented content: BPRISE prohibits the sale, promotion for sale, landing pages of the following types of adult oriented content:
- Adult merchandise
- Sexually suggesting content
- Images containing exposed skin and nudity
- The Client does not misrepresent oneself or the product, through
- Promotions that prompt users to initiate a purchase without first providing all relevant information and obtaining the user’s explicit consent.
- Promotions that represent the Client or the Client’s products in a way that is not accurate, realistic and truthful.
- Restricted content: The following content will be restricted and only shown when BPRISE may deem it might be appropriate to do so.
- Alcoholic Beverages: When promoting Alcoholic beverages, the Client may not do any of the following:
- Violate applicable laws and industry standards for any location that the Client targets
- Target individuals below the legal drinking age
- Imply that drinking alcohol improves social, professional, intellectual, athletic or sexual standing
- Imply that drinking alcohol provides health or therapeutic benefits
- Healthcare Products: BPRISE restricts the promotion of the following and the restriction will vary based on the products the Client is promoting and countries the Client is targeting.
- Over the Counter Medication
- Prescription Drugs
- Unapproved pharmaceuticals and supplements
- Online pharmacies promoting non-prescription products
- Pregnancy and fertility-related products
- Sexual enhancement treatments
- Copyrighted Content: BPRISE restricts the promotion of Copyrighted Content and the Client should contact BPRISE at [email protected], if the Client believes that the Client is legally authorized to promote such content.
- Gambling: BPRISE restricts gambling products such as national or private lotteries or other gambling products.
- The following Prohibited Content is not sold via the Service Platform.
- pay the Billed Spend; (i) deem BPRISE its nonexclusive preferred provider of DSP services, and use commercially reasonable efforts to run all Client-Managed Campaigns through the Service Platform; and
- be prohibited from reverse engineering, reverse compiling and disassembling the BPRISE technology, including the Service Platform. Client agrees that it is responsible for the use of the Service Platform by its employees, and approved agents and subcontractors, and that it will ensure such employees, and approved agents and subcontractors comply with the terms of this Agreement. Client acknowledges that in the event of a breach of clause (f), (g) or (h) above, BPRISE reserves the right, in its sole discretion exercised in good faith, to remove the relevant Ad, Campaign and/or Strategy, and/or to suspend or permanently deactivate Client’s account in the Service Platform.
- Client Acknowledgment. Client agrees and acknowledges that the acts of setting Campaign and Strategy specifications, placing Service Platform ad tags on web pages, and loading Ad(s) and other data files result in the purchase of Digital Media Inventory and compensable services under this Agreement, and that such purchases will be recorded by the Service Platform. Except to the extent caused by a technical malfunction solely in the Service Platform that is not based on any malfunction of any third-party system, or to BPRISE’s error or overspend under the Campaign QA Service or Trading Service, Client is obligated to pay BPRISE the Billed Spend associated with the Digital Media Inventory purchased and the services rendered. Client acknowledges and agrees that BPRISE does not guarantee that Digital Media Inventory meeting Client’s selected criteria will be available, or that it will be available in the volume desired by Client, or that Client will be the successful bidder for such inventory.
- BPRISE’s Obligations. Subject to Client’s compliance with the terms and conditions of this Agreement, BPRISE shall
- provide Client with the Service Platform, Campaign QA Service, Trading Service and the other services described in this Agreement;
- perform services under this Agreement in a professional and workmanlike manner; and
- provide technical support for the Service Platform.
- For purposes of this, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms of this Agreement, a party’s finances, records and contact information, employee lists, Client Data, information contained within the Insertion Order, information about the Service Platform, and business, strategic development and marketing plans. Confidential Information will not include:
- information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party;
- information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party;
- information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; or
- information that the receiving party developed independently of any disclosures of such information by the disclosing party. Neither party will disclose any Confidential Information to any third party; provided, however, that a party may disclose Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed. The parties agree that monetary damages for breach of confidentiality under this section will not be adequate and the non-breaching party shall be further entitled to injunctive relief.
- Client Data. Client shall retain ownership of the Client Data, and BPRISE shall retain ownership of the BPRISE Data. Client hereby grants BPRISE a non-exclusive, royalty-free license and right during the Term to use the Client Data in connection with the services provided by this Agreement. In addition, BPRISE may disclose the Client Data to a third party under the circumstances allowed in Section 6.
- BPRISE Data. BPRISE shall use the BPRISE Data solely:
- to operate, manage, maintain and enhance the Service Platform, Campaign QA Service, and Trading Service, and
- to improve the Service Platform’s method of predicting impression-level market clearing prices and winning bid prices for Service Platform users.
- Intellectual Property and Retained Rights. Apart from the limited licenses granted in Sections 2 and 8, each party will own and retain their respective intellectual property rights. Client acknowledges that the Service Platform, Campaign QA Service, and Trading Service, and all intellectual property and proprietary rights in and to the foregoing, are the sole and exclusive property of BPRISE and its licensors. Each party retains all other rights not expressly granted in this Agreement.
- Mutual Representations. Each party represents and warrants that
- it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder, and
- it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT, BPRISE AND BPRISE’S LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BPRISE AND ITS LICENSORS MAKE NO REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CLIENT, OR ANY THIRD PARTIES SHALL RECEIVE FROM SERVICE PLATFORM OR THE SERVICES PROVIDED UNDER THIS AGREEMENT.
- Each party will defend, indemnify, and hold harmless the other party and its Affiliates, and their respective directors, officers, employees, agents and third party licensors, from and against any loss, damage, settlement, cost, expense, and any other liability (including reasonable attorneys’ fees and costs) (collectively, “Losses”) related to or arising out of any third party claim, lawsuit, or proceeding (a “Claim”) based on an allegation that, if true, would constitute a breach of a representation, warranty, covenant or obligation under this Agreement by the indemnifying party. “Claim” excludes any allegation or claim brought against the indemnified party by its Affiliate.
- Client Indemnification. Client agrees to defend, indemnify and hold harmless BPRISE and its Affiliates, and their respective directors, officers, employees, agents and third party licensors, from and against Losses related to or arising out of a Claim that alleges that the Ads, and/or the data or other material provided by Client to the Service Platform or BPRISE are illegal, deceptive, defamatory, or obscene, or violate a consumer’s online privacy or other rights, or infringe a third party’s intellectual property rights.
- Indemnification Procedures. The indemnified party shall promptly notify the indemnifying party in writing of the claim for which the indemnified party is seeking indemnification; it being understood, however, that failure to provide such notice promptly shall not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent that the indemnifying party has been materially prejudiced by such delay. The indemnifying party shall control the defence of the indemnified claim, including through choice of counsel, provided that the indemnified party may appear at its own expense through its own counsel. The indemnifying party shall not acquiesce to any settlement that imposes any liability or substantive obligation on an indemnified party without such indemnified party’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
- Limitation of Liability. Except for any liabilities arising out of Sections 6 and 7, in no event shall a party be liable to the other party or its Affiliates for any indirect, special, incidental, consequential or punitive damages. BPRISE’s liability under this Agreement shall not exceed the aggregate BPRISE Fees paid and payable to BPRISE under this Agreement for the six (6) month period preceding the date the first liability arose. Except as described in Section 4, BPRISE shall not be liable to Client, its Affiliates or any user, publisher, web site visitor or other third party for loss, cost, damages or expense incurred in connection with Client’s use of the Service Platform and the services provided under this Agreement, including any technical malfunction, inputting errors, system error, corruption or loss of data, or other damage.
- The initial term of this Agreement is one year from the Effective Date (“Initial Term”), and shall automatically renew for one-year periods (each, a “Renewal Term”); unless
- the Agreement is terminated earlier in accordance with the terms of this Agreement, or
- either party provides the other party with written notice of its intent not to renew the Agreement at least sixty (60) days prior to the end of the then current term. “Term” shall mean the period from the Effective Date until the expiration or earlier termination of this Agreement.
- Either party may terminate this Agreement if the other party has materially breached its obligations hereunder and has failed to cure such breach within thirty (30) days following the receipt of a written notice specifying the nature of the breach from the party seeking to terminate. In addition, either party may terminate this Agreement if the other party
- becomes insolvent;
- makes a general assignment for the benefit of creditors;
- is adjudicated bankrupt; or
- becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition or general assignment for the benefit of creditors, provided however that such proceeding was not dismissed within forty-five (45) days after it was instituted. Notwithstanding any other provision hereof, BPRISE shall have the right to terminate this Agreement immediately upon written notice to Client in the event that BPRISE has reason to believe in good faith that Client has breached
- the security of the Service Platform, in violation of Section 2 and/or BPRISE’s posted requirements;
- Client’s confidentiality obligations under Section 6;
- Client’s privacy obligations under Section 7 in a manner that BPRISE believes in good faith is likely to harm BPRISE’s reputation; or
- Client’s obligations under Section 2 by providing access to, or information about, the Service Platform to a competitor of BPRISE, or by accessing the Service Platform while it owns, develops or maintains a demand side platform.
- Effect of Termination. Upon termination of this Agreement,
- each party’s revocable license(s) to the other party shall automatically and immediately be revoked; and
- Client shall promptly pay to BPRISE all amounts due, provided that termination of this Agreement due solely to a material breach by BPRISE shall release Client from those payment obligations that have not yet accrued as of the effective date of termination. The following provisions shall survive the termination of this Agreement: Sections 2, 6 through 9, 11, 13, and 15 through 17. Upon termination, BPRISE agrees to transfer promptly to Client any accounts for third party advertising services that BPRISE maintains solely on Client’s behalf (if any), including the data maintained in such accounts by the third-party advertising services.
- Miscellaneous Provisions.
- Governing Law. This Agreement, including its formation, performance, termination and enforcement, together with any related claims whether under contract, tort or otherwise, shall be governed, construed and enforced in accordance with the laws of the State of Maharashtra, without reference to its conflict of law principles. For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of and venue in the district or city courts within the city of Mumbai.
- Neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement to an entity that is not a direct competitor, and is not an affiliate of a direct competitor, of the non-assigning party, in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
- Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties and supersedes any prior understandings or discussions relating to the subject matter of this Agreement. Each party acknowledges that it has entered into this Agreement in reliance upon its independent investigation and analysis, and that neither has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement. This Agreement may be amended, modified or supplemented only by a writing signed by both parties (which writing may be evidenced by electronic contract). No failure or delay on the part of either party in exercising any right or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.
- This Agreement may be signed in multiple counterparts, and each such duly signed counterpart shall be deemed to be an original of this Agreement.
- Independent Contractor. Each party is an independent contractor with respect to the other party hereunder. This Agreement shall not be construed to
- create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or
- authorize any party to enter into any commitment or agreement binding on the other party.
- Force Majeure. No party shall be liable under this Agreement for (or deemed in breach of this Agreement by reason of) any failure, delay or interruption in performing any term or condition (except obligations to make payments) of this Agreement due to cause(s) entirely beyond the control of such party; subject however to the condition that such party gives the other party written notice thereof promptly and, in any event, within thirty (30) days following discovery thereof and takes immediate action to cure such cause. In the event of any such cause, the time for performance shall be extended for a period equal to the duration of such cause. Payment of the fees due under this Agreement shall not be subject to this provision
- If any portion of this Agreement is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement shall remain in effect in accordance with its provisions as modified by such reformation or elimination.
- All notices pursuant to this Agreement shall be in writing and delivered either personally, by express courier, or certified mail, and sent to the addresses set forth in this Agreement or to such other address as a party may later specify in writing; and shall be effective upon delivery.
- Neither party will issue any press releases regarding this Agreement without the other party’s prior written consent; provided however, that BPRISE may publicly disclose in writing the fact that Client is a Client/client and may use Client’s Marks for such purposes.
- Acceptance of advertising. Advertisements are subject to review and approval by BPRISE. BPRISE and/or the Publisher may, at its discretion, require edits or reject any advertisement submitted by the Client. Ads that have not previously appeared in any of the Publisher’s properties must be submitted for approval at least two weeks in advance.
- Reporting. The Service Platform maintains independent tracking of media impressions, clicks, conversions, and other data which serves as the basis for all Service Platform reporting, as well as the input for the various cost, fee, and other financial calculations. The parties acknowledge that when comparing the impression, click, conversion, and other data reported by the Service Platform with that data reported by a third-party system, it is common to observe discrepancies and differences for a variety of reasons, including different counting methodologies, different attribution methodologies, different fraud detection and fraud elimination methodologies, and differences in the extent of pixel placement or other tracking technologies, falloff in counts due to the presence of third party redirects, use of different time zones to define daily reporting intervals, server latency, errors in creative trafficking, errors in pixel placement, browser caching, blocking of ads by a third party, and more. A discrepancy troubleshooting guide, available in the Service Platform’s Knowledge Base, addresses common causes and resolutions for reporting discrepancies. Company acknowledges that discrepancies of up to 10% for impressions and/or clicks are common, and do not require action or resolution by the BPRISE team. For discrepancies above 10% for impressions and/or clicks with causes are not addressed in Service Platform’s Knowledge Base, the Service Platform technical support team is available to work with Client to address and resolve.
- Fees and Payment.
- BPRISE will invoice Client in advance on a monthly basis for its usage of the Service Platform in the coming calendar month, calculated in accordance with the IO. The invoice (“Billed Spend”) shall consist of:
- The Total Ad Cost;
- As applicable, the Fee / Ad Serving Cost / Professional Services Fee and the other fees due to Euler Media for services performed under this Agreement.
- For Euler Media’s out-of-pocket expenses, including its actual travel, food and lodging expenses for travel to Client’s premises (if applicable and with prior intimation to the Client).
- Taxes are extra and will be included in the Insertion Order.
- Any line of credit given to the Client will be at the sole discretion of BPRISE and should be paid within thirty (30) days after the date of the applicable invoice.
- Payment will be accepted in Cheque / Demand Draft / Online Transfer or Credit/Debit Card transfers. Details of BPRISE’s Bank Account, Account Name, IFSC Code are given on the first page of the Insertion Order Agreement.
- Cash payment is not accepted. Claims cannot be raised against BPRISE for payments made in Cash to any party including BPRISE’s sales team.
- BPRISE will invoice Client in advance on a monthly basis for its usage of the Service Platform in the coming calendar month, calculated in accordance with the IO. The invoice (“Billed Spend”) shall consist of:
Last Updated: 05.June.2018