ENDORSEMENT AGREEMENT
THIS ENDORSEMENT AGREEMENT (herein referred to as the "Agreement") is entered
into this 18th day of March, 2023,
BY AND BETWEEN:
HTC Ltd., a company existing under the Companies Act, 2013, which got registered on 1st
April, 1995 and having its registered office in Mumbai, hereinafter referred to as the
“Company”.
AND
MR. Akshay Kapoor, son of Mr. Bonny Kapoor, aged about 52 years, residing in Mumbai
(herein referred to as the “Celebrity”)
WHEREAS:
a) The Business manufactures and sells soft drinks in India, with Boca Cola being one of
their best-selling beverages.
b) Akshay Kapoor is a renowned celebrity and a prominent figure in the Indian film
industry, with a great level of admiration and respect from his fans.
c) The Company and the Celebrity have agreed to collaborate and work together for the
promotion, endorsement, and marketing of their Product (Boca cola) on the terms and
subject to the conditions of this agreement.
NOW THEREFORE
In consideration of the foregoing and the mutual covenants and promises contained herein and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be bound legally, agree as follows:
1. Definitions and Interpretation
1.1 The following definitions shall apply in this agreement.
“Confidential Information” means all financial, commercial, technical, proprietary, personal,
and other information or data, trade secrets and know-how of either party, including the terms
of this agreement.
“HTC Licensed marks” shall mean the following marks owned by HTC Ltd.: the names Boca
cola and HTC Ltd., registered patent of Boca cola bottle design and various symbols, devices,
logos, and designs embodying the same.
“Company” means HTC Ltd., the company whose product ‘Boca cola’ is being endorsed.
“Contract duration” means the total duration for which the contract is effective i.e., 3 years
from the date on which it became enforceable.
“Services” means the services to be provided by the Celebrity to the Company in relation to
the development, endorsement, and promotion of the Product, as more particularly described
in clause.
“Celebrity” means the actor Akshay Kapoor, the celebrity endorsing the product.
“Product” means HTC Ltd.’s flagship product Boca Cola.
"Endorse" or "Endorsement" shall mean the endorsement, marketing, promotion, and
support of Boca cola through various add campaigns and promotional activities.
“Agreement” shall mean this Endorsement Agreement and shall include any recitals,
schedules, or exhibits that may be annexed and any amendments or modifications made to this
Employment Agreement from time to time by the Parties in writing.
1.2 Clause headings do not affect the interpretation of this agreement.
1.3 A reference to a person includes a natural person, a corporate or unincorporated body
(whether having a separate legal personality).
1.4 A reference to a particular law is a reference to it as it is in force for the time being
taking account of any amendment, extension, application, or re-enactment, and includes any
subordinate legislation for the time being in force made under it.
1.5 A reference to Writing or written includes faxes and e-mail.
2. Endorsement
According to the conditions of this agreement, Mr. Akshay Kapoor has agreed to promote,
market, and give his endorsement to the Product. These conditions are outlined as follows:
2.1 During the term of this agreement, the celebrity agrees with the Company to use and
authorize the use of their name, biography, photograph, and accurate representation for
advertising and promotional purposes of the Product.
2.2 The celebrity shall perform in 3 advertisements in 9-months endorsing the product for the
contract duration.
2.3 The celebrity must drink Boca Cola while walking in public.
2.4 The celebrity must make a reel every month on his Facebook account as well as other social
media accounts endorsing the product during the term of this contract.
2.5 The Celebrity agrees to provide the following Services to the Company:
a) to review and confirm the accuracy of the content developed in relation to the Product;
b) to provide detailed feedback and guidance on the features of the Product and the overall user
experience of the Product;
c) to permit the Company to use the Celebrity’s name and likeness as part of the Product and to
advertise and promote the Product;
d) to endorse the Product and actively promote and market the Product through various forms of
media (including television, offline and online publications and through the Celebrity’s own
social media channels) to the extent reasonably agreed between the parties; and
e) such additional contribution as may be reasonably required for the success of the Product.
3. Obligations of the celebrity
3.1 The Celebrity:
a) confirms that he has full authority to enter and perform this agreement and that he is not bound
by any previous agreement which adversely affects this agreement;
b) confirms that the Product and the Services shall be original and will not infringe the Intellectual
Property Rights of any third party, except where any material is included at the request of the
Company or other third party engaged by the Company;
c) confirms that the Product and the Services will not contain any obscene or defamatory material
and will not expose the Company to criminal or civil proceedings, except where any material
is included at the request of the Company or any other third party engaged by the Company;
d) agrees that the Company shall be entitled to use and permit the use of the Celebrity’s name,
biography, photograph, and fair likeness for the purposes of promoting and advertising the
Product during the term of this agreement;
e) agrees not to participate in any activities which would prejudice the goodwill and reputation of
the Company and/or the Product during the term of the agreement and for a period of 18 months
after the date of such termination or end of contract term.
f) confirms that they shall be responsible for their own tax due under this agreement;
g) agrees to comply with all the rules in force at such places and locations at which they are
required to attend in connection with providing the Services;
h) acknowledges that the final editorial decision in respect of all advertising publicity,
promotional and any other material created under this agreement in respect of the Product shall
be at the sole discretion of the Company subject to the undertakings given in this agreement;
i) undertakes not to develop, endorse, or promote any other Product which is substantially similar
in purpose to the Product; and
j) undertakes to comply with the advice of the Company in arranging the development and
promotion of the Product and the provision of the Services.
3.2 The Celebrity grants to the Company the right to use and reproduce and to authorise others
to do so, photographs, reproductions of the Celebrity’s likeness and recordings of their voice
made while rendering the Services and the Celebrity’s name, autograph and biography in each
case for and in connection with the promotion and commercial exploitation of the Product in
such manner and media for such purposes as the Company may reasonably require.
3.3 Nothing in this agreement shall prevent the Celebrity from being engaged, concerned, or
having any financial interest in any capacity in any other business, trade, profession, or
occupation during the term of this agreement, provided that:
a) such activity does not cause a breach of any of the Celebrity’s obligations under this agreement;
and
b) the Celebrity shall not engage in any such activity if it relates to a business which is competitive
with the Product or the business of the Company.
4. Obligations of the company
4.1 The Company:
a) agrees that the Celebrity shall be the principal personality to endorse, present, promote and
advertise the Product throughout the Territory during the term of this agreement;
b) undertakes not to disclose any material nor make any statement, whether true or not, concerning
the Celebrity’s private life, politics, and personal views to the media (including newspapers,
television, and radio) at any time without the prior written consent of the Celebrity;
c) agrees that the Celebrity will not be requested to be involved in any work which would impugn
the character or reputation of the Celebrity in respect of the provision of the Services under this
agreement;
d) undertakes that no material of any nature concerning the Celebrity shall be used by the
Company which would impugn the character or reputation of the Celebrity;
e) agrees to consult with the Celebrity in respect of all proposed scripts, photographs, films,
videos, sound recordings, posters, computer software, packaging, advertising, promotional,
publicity and marketing material in all media, featuring or relating to the Celebrity, prior to the
production, manufacture, and distribution of such material;
f) undertakes that it shall use reasonable endeavours to ensure that no material produced under
this agreement will infringe the Intellectual Property Rights of any third party;
g) agrees to provide the Celebrity with reasonable notice of all meetings and promotional events
at which the Celebrity is requested to attend under this agreement;
h) agrees that upon reasonable request it shall provide a copy of any record, document, accounts,
or other material which assist the Celebrity in establishing the validity and accuracy of the sums
due; and
i) confirms that it has full authority to enter into and perform this agreement and that it is not
bound by any previous agreement which adversely affects this agreement.
j) Agrees that terms of this agreement will remain confidential between "CELEBRITY" and the
"COMPANY" unless written permission is granted for release by both parties.
5. Representation
5.1 The Celebrity:
confirms that he has full authority to enter and perform this agreement and that he is not bound
by any previous agreement which adversely affects this agreement.
5.2 The Company:
Agrees that the Celebrity shall be the principal personality to endorse, present, promote and
advertise the Product throughout the Territory during the term of this agreement;
6. Consideration
6.1 In consideration of the Services, the Company agrees to pay the celebrity an amount of 10 Cr
after the successful completion of the contract term.
6.2 If contract terminates before the completion of its term, the celebrity will be paid on pro rata
basis. The payable amount will be mutually decided by the celebrity and the company.
6.3 The company will sponsor for all the travel, food, and accommodation expense of the celebrity
during the product promotional events.
7. Intellectual Property and moral rights
7.1 The Company shall be entitled to use, exploit, or licence any of the material produced or
created as a result of the provision of the Services or as part of the Product in which the
Celebrity appears in sound or vision for the endorsement, promotion, advertising or marketing
of the Product anywhere in the Territory but not for any other purposes.
7.2 Subject to the provisions of this agreement, the Company agrees that all Intellectual
Property Rights in the Celebrity’s name and image in the Territory shall be the sole and
exclusive property of the Celebrity.
7.3 The Company acknowledges and the Celebrity asserts their right not to be subject at any
time in any material which may impugn the character or reputation of the Celebrity or their
work.
7.4 Each party shall immediately give written notice to the other party of any actual, threatened,
or suspected infringement of the other party's Intellectual Property Rights in the Territory.
8. Mutual indemnity
8.1 The Celebrity and the Company undertake to indemnify the other against all liabilities,
claims, demands, actions, costs, damages or loss arising out of any breach by either party of
any of the terms of this agreement.
8.2 In the event of any claim, dispute, action, writ or summons in connection with clause 8.1,
the Celebrity and the Company agree to provide full details to the other party at the earliest
opportunity and shall not settle any such matter without first consulting the other party.
8.3 In the event of any legal proceedings being commenced by any third party against either
the Company or the Celebrity or both in respect of any material under the agreement, then
written notice shall immediately be given to the other on such occasion. Both parties shall assist
each other as may reasonably be required to settle or defend such action. Each party shall bear
its own legal costs.
9. Confidentiality
9.1 Neither party shall (except in the proper course of their duties), either during the term of
this agreement or at any time after its termination, use or disclose to any third party (and shall
use their best endeavours to prevent the publication or disclosure of) any Confidential
Information.
9.2 This restriction in clause 8.1 does not apply to:
a) any use or disclosure authorised by the party to whom the disclosure relates;
b) any use or disclosure required by law, by any government or other regulatory authority or by a
court or other authority of competent jurisdiction provided that, to the extent it is legally
permitted to do so, it gives the other party as much notice of this disclosure as possible;
c) any information which is already in, or comes into, the public domain otherwise than through
the disclosing party’s unauthorised disclosure; or
d) any use by or disclosure made to legal advisors or any bona fide prospective purchaser or
subscriber who is intending to acquire shares in the Company by way of purchase or
subscription.
10. Termination
10.1 The Celebrity may by giving three months prior written notice to the Company terminate
this agreement if:
a) The Company commits any serious or repeated breach or non-observance of any of the
provisions of this agreement; or
b) The Company goes into voluntary or involuntary liquidation or is declared insolvent.
10.2 The Company may by giving three months prior written notice to the Celebrity
terminate this agreement:
(a) At any time after the date when the contract came into existence;
(b) If the Celebrity commits any serious or repeated breach or non-observance of any of
the provisions of this agreement;
(c) If the Celebrity is incapacitated (including by reason of illness or accident) from
providing the Services for an aggregate period of 100 days in any 52-week consecutive period;
or
(d) if the Celebrity is declared bankrupt or makes any arrangement with or for the benefit
of her creditors.
10.3 The Company may terminate this agreement immediately upon giving written notice if
the Celebrity takes or engages in any action or conduct that brings her or the Company into
disrepute.
10.4 The parties may terminate this agreement by mutual written agreement.
Upon termination:
a) the provisions of clauses 8 (Mutual Indemnity), 9 (Confidentiality) this clause 10 and clauses
11 (No Partnership or Employment) to 15 (Governing Law) shall continue in force in
accordance with their respective terms;
b) the Company will own and retain all Intellectual Property Rights produced as a result of the
development of the Product and provision of the Services;
c) the Company will be entitled to continue to use the name, autograph and likeness of the
Celebrity for a period of six months from the date of termination.
11. No Partnership or Employment
This agreement shall not be deemed to create any partnership, agency, or employment
relationship between the parties.
18. General
18.1 This agreement and the documents referred to in it contain the whole agreement between
the parties relating to the transactions contemplated by this agreement and supersede all
previous agreements between the parties relating to these transactions.
18.2 Both parties agree that they have not relied on any promises or statements made by any
party other than those explicitly stated in this agreement. They also acknowledge that, except
for fraud, they waive any right to seek any remedy arising from any such unmentioned promises
or statements.
18.3 Unless otherwise provided for in this agreement, no variation or agreed termination of this
agreement shall be of any force or effect unless in writing and signed by each party.
18.4 This agreement is personal to the parties and no party shall, without the prior written
consent of each other party, assign, declare itself as trustee or otherwise dispose of or sub-
contract, delegate, mortgage or charge any interest under this agreement. No party shall sub-
contract or delegate in any manner any or all of its obligations under this agreement to any third
party or agent. Each party is acting on its own behalf and not for the benefit of any other person.
13. Miscellaneous
13.1 Notice
a) Any notice or other communication under or in connection with this agreement shall be in
writing and shall be delivered personally, electronically or by commercial courier to the parties
due to receive the notice or communication at its address set out above or at such other address
as the relevant party may specify by notice in writing to the other parties.
b) Any notice or other communication shall be deemed to have been duly given if delivered:
1. personally, when left at the address referred to in the immediately preceding clause;
2. electronically, when a delivery confirmation report is received by the sender, which records the
time that the email was delivered to the addressee’s last notified email address (unless the
sender receives a delivery failure notification, indicating that the electronic mail has not been
delivered to the addressee);
3. by commercial courier, on the date of signature of the courier’s receipt.
13.2 Arbitration, Governing law, and Jurisdiction
a) In the event of any dispute, claim, or question arising between the Parties regarding this
Agreement, it shall be resolved through arbitration. The Parties shall jointly appoint a sole
arbitrator within 30 days from the expiration of 45 days after the request is served. If the Parties
cannot agree on an arbitrator within the given time, each Party shall appoint one arbitrator, and
the appointed arbitrators shall select a third arbitrator. The arbitration proceedings shall follow
the Indian Arbitration and Conciliation Act, 1996 or any related statute, and take place in
Mumbai using the English language. The award resulting from the arbitration shall be final and
binding on the Parties.
b) This document is governed by Indian Law and each of the Parties shall hereby submit to the
exclusive jurisdiction of the courts at Mumbai.
13.3 Force majeure clause
a) Neither party shall be held liable for any failure or delay in performance of their obligations
under this agreement if such failure or delay is caused by an event beyond the control of
the affected party, including but not limited to acts of God, fire, flood, war, pandemic,
earthquake, terrorism, governmental action, or any other event that is beyond the reasonable
control of the party.
b) If any such event occurs, the affected party shall promptly notify the other party in writing
of the circumstances causing the delay or inability to perform, and the parties shall discuss
and agree on a reasonable course of action to mitigate the impact of the event.
c) If the force majeure event continues for more than 30 days, either party may terminate this
agreement by giving written notice to the other party, without any liability to either party.
In the event of such termination, the parties shall be released from all further obligations
and liabilities under this agreement.
13.4 Counterparts
This agreement may be executed in any number of counterparts, each of which when executed
and delivered shall be an original, but the counterparts together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
date first above written.
SIGNED AND DELIVERED by
Mr. XYZ
By the hand of director pursuant to the board resolution passed on 15th February, 2023.
In presence of: Manika Singhi
Witness: Sarjeet Singh
SIGNED AND DELIVERED by
Mr. Akshay Kapoor
In presence of: Harshala Anik
Witness: Mohit Agarwal
