Digital Marketing Agreement - Template, Sample Form Pro · IN-law

DIGITAL MARKETING SERVICES AGREEMENT

This Digital Marketing Services Agreement (the "Agreement") is made and executed at ________ on this ________ (the "Effective Date").

BY AND BETWEEN

________, ________ (constitution/nature of entity), bearing PAN ________ and GSTIN ________, having its registered/principal office at ________, acting through its authorised signatory ________ (hereinafter referred to as the "Service Provider", which expression shall, unless excluded by or repugnant to the subject or context, be deemed to include its successors, legal heirs, administrators and permitted assigns) of the FIRST PART;

AND

________, ________ (constitution/nature of entity), bearing PAN ________ and GSTIN ________, having its registered/principal office at ________, acting through its authorised signatory ________ (hereinafter referred to as the "Client", which expression shall, unless excluded by or repugnant to the subject or context, be deemed to include its successors, legal heirs, administrators and permitted assigns) of the SECOND PART.

(The Service Provider and the Client are hereinafter individually referred to as a "Party" and collectively as the "Parties".)

RECITALS

A. The Service Provider is engaged in the business of providing digital marketing services (as defined hereunder) and represents that it possesses the requisite skills, qualifications, experience and expertise to perform the Services.

B. The Client desires to engage the Service Provider to provide the Services, and the Service Provider has agreed to provide the same.

C. The Parties are desirous of recording the terms and conditions governing the provision of the Services in the manner hereinafter appearing.

NOW, THEREFORE, in consideration of the mutual covenants, promises and obligations contained herein, and intending to be legally bound, and pursuant to the provisions of the Indian Contract Act, 1872, the Parties hereby agree as follows:

§ 1. DEFINITIONS

1.1. "Applicable Law" means all applicable (i) statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, circulars or policies of any jurisdiction in India; and (ii) judicial, quasi-judicial and/or administrative decisions, interpretations, directions, directives, licences, permits, judgments, writs, injunctions, arbitral awards, decrees, orders, terms and conditions of governmental or regulatory approvals or agreements with any Government Body, in each case as in force from time to time;

1.2. "Approvals" means sanctions, permissions, consents, validations, confirmations, licences and other authorisations obtained and/or required to be obtained from any Government Body;

1.3. "Confidential Information" shall have the meaning ascribed to it in § 13;

1.4. "Deliverables" means all work product, materials, creatives, designs, content and outputs created by the Service Provider for the Client in the course of providing the Services;

1.5. "Government Body" means any government authority, statutory authority, government department, agency, commission, board, tribunal, court or other entity having or purporting to have jurisdiction on behalf of the Republic of India or any State or other subdivision thereof or any municipality, district or other subdivision thereof;

1.6. "GST" means the Goods and Services Tax levied under the Central Goods and Services Tax Act, 2017, the respective State Goods and Services Tax Acts, the Integrated Goods and Services Tax Act, 2017 and the rules made thereunder;

1.7. "Personal Data" and "Processing" shall have the meanings ascribed to them under the Digital Personal Data Protection Act, 2023 and the rules made thereunder;

1.8. "Services" means the digital marketing services, including the planning, provision, creation and/or placement of branding, research, advertising, marketing, consulting, creative and/or digital services for the Client, more particularly described in this Agreement and Annexure A;

1.9. "Term" means the period during which the Service Provider provides the Services under this Agreement, as specified in § 11.

§ 2. INTERPRETATION

2.1. The headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement.

2.2. Unless the context otherwise requires, words using the singular or plural number also include the plural or singular number, respectively.

2.3. Words denoting any gender shall include all genders.

2.4. The words "written" and "in writing" include any means of visible reproduction, including electronic records within the meaning of the Information Technology Act, 2000.

2.5. The terms "hereof", "herein", "hereto" and similar words refer to this entire Agreement and not any particular clause or subdivision of this Agreement.

2.6. The words "include" or "including" shall be deemed to be followed by "without limitation" or "but not limited to".

2.7. References to any "person" include any natural person, corporation, judicial entity, association, statutory body, partnership, limited liability partnership, company, joint venture, trust, estate, unincorporated organisation or government, state or any political subdivision, instrumentality, agency or authority.

2.8. References to a "clause", "§" or to any agreement or document shall be construed as references to the clauses of this Agreement, or such other agreement or document as may be amended, modified or supplemented from time to time.

§ 3. SCOPE OF SERVICES

3.1. The Client agrees to avail the Services from the Service Provider and the Service Provider agrees to provide the Services to the Client on the terms and conditions set out in this Agreement.

3.2. The Service Provider shall:

3.2.1. perform the Services (i) in a professional, diligent and timely manner; (ii) in accordance with good commercial practices; and (iii) within the budget specified by the Client;

3.2.2. retain and deploy a sufficient number of qualified personnel to perform the Services;

3.2.3. ensure that all personnel deputed to perform the Services are appropriately trained and qualified;

3.2.4. be responsible for any acts or omissions on the part of such personnel, and shall maintain valid contracts with such personnel upholding the substance of this Agreement; and

3.2.5. devote the time and attention necessary to provide the Services in accordance with prevailing industry standards and any quality standards specified by the Client.

3.3. Unless authorised in writing, the Service Provider shall not have any authority to commit the Client to any obligation in respect of third parties or to enter into any contracts on behalf of the Client, nor shall it represent itself as having such authority.

3.4. The Service Provider shall keep the Client promptly informed of all material matters coming to its attention relating to or affecting the business of the Client or the provision of Services hereunder.

3.5. The total budget shall be specified by the Client in Annexure A. The Service Provider shall manage the designated budget responsibly, shall confer with the Client prior to any anticipated overrun, and shall provide the Client with all purchase/rental receipts and an itemised, annotated account of all expenditures. All items or services purchased with the Client's funds shall become the property of the Client.

3.6. The Service Provider shall complete the Services in accordance with the following milestone schedule:

________

3.7. The Service Provider shall provide the following search engine optimisation (SEO) services:

________

3.8. The Service Provider shall provide the following content-writing services:

________

3.9. The Service Provider shall provide the following pay-per-click (PPC) services:

________

§ 4. SOCIAL MEDIA AND EMAIL MARKETING

4.1. For Services relating to social media and email marketing and management, the Service Provider shall promote and/or manage the Client's social media presence, including (without limitation) Google Business Profile, X, Facebook, Instagram and LinkedIn, and/or provide email marketing and advertising services, in accordance with the order placed by the Client.

4.2. The Client acknowledges that each platform has its own terms of service and reserves the right to remove advertisements or posts. The Service Provider shall advise the Client of any such rules and shall not be responsible for any rejection or removal of posts or advertisements. No such removal shall negate the fees payable to the Service Provider.

4.3. The Service Provider makes no guarantee that social media or email marketing will lead to increased business or profits, and shall not be liable for any loss or damage in this regard.

4.4. All email marketing shall be conducted in compliance with Applicable Law, including the Information Technology Act, 2000 and the Digital Personal Data Protection Act, 2023, and the Client shall be responsible for budget allocation across platforms.

§ 5. CONSIDERATION AND PAYMENT

5.1. In consideration of the Services, the Client shall pay to the Service Provider the fixed fee of Rs. ________ (Rupees ________).

5.2. The fee shall be paid in accordance with the following schedule:

________

5.3. The fee specified above is ________ (inclusive of / exclusive of) GST and other applicable taxes. The Service Provider shall raise valid tax invoices in compliance with the Central Goods and Services Tax Act, 2017.

5.4. Save as expressly agreed in writing, the Service Provider shall bear all its own expenses arising from the performance of its obligations, and the Client shall have no obligation to provide office space, work facilities, equipment or clerical/programming services.

5.5. Payment shall be made by ________ to the following bank account:

________

5.6. In the event of delay by the Client in payment of undisputed fees, the Service Provider shall be entitled to suspend the provision of further Services until the outstanding dues are paid. Without prejudice, the Service Provider may charge interest on delayed payments at the rate of ________% per annum from the due date until the date of actual payment.

5.7. For any service not included in this Agreement, the Parties shall mutually agree in writing upon the scope, fees and expenses prior to commencement.

5.8. All payments shall be subject to deduction of tax at source (TDS) as applicable under the Income-tax Act, 1961. The Client shall issue the requisite TDS certificate to the Service Provider in accordance with Applicable Law.

5.9. Where a bona fide dispute exists as to whether work was completed or an invoice is properly payable, the disputed amount shall not be due until the dispute is resolved.

§ 6. RECORDS

The Service Provider shall maintain proper and accurate records relating to the conduct of the Services, including all legal and accounting documentation, during the Term and for a period of ________ thereafter, and shall make the same available to the Client upon reasonable request.

§ 7. REPORTS

The Service Provider shall provide information and reports in relation to the performance of the Services as may be reasonably requested by the Client. Written reports shall be submitted at the following intervals: ________, by the following method: ________.

§ 8. REPRESENTATIONS AND WARRANTIES

8.1. Each Party represents and warrants to the other that:

8.1.1. it has full power and authority to enter into this Agreement and perform its obligations hereunder;

8.1.2. this Agreement has been duly executed by it and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms; and

8.1.3. the execution, delivery and performance of this Agreement does not and will not (i) breach or constitute a default under its constitutive documents, or (ii) result in a breach of, or constitute a default under, any agreement to which it is a party or by which it is bound.

8.2. The Service Provider represents and warrants to the Client that:

8.2.1. it will provide the Services in compliance with this Agreement;

8.2.2. it will act in good faith and use reasonable skill and care;

8.2.3. it will comply with all Applicable Laws in the provision of the Services; and

8.2.4. it holds all requisite approvals, licences and permits to provide the Services.

8.3. EXCEPT AS EXPRESSLY SET OUT ABOVE, THE SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT PERMITTED BY APPLICABLE LAW.

§ 9. OBLIGATIONS OF THE SERVICE PROVIDER

9.1. The Service Provider shall provide the digital marketing Services as described in the scope of work, including (without limitation) SEO, PPC advertising, social media management, content creation and email marketing.

9.2. The Service Provider shall develop and implement digital marketing strategies tailored to the Client's goals, target audience and industry.

9.3. The Service Provider shall create, optimise and manage digital marketing content, including advertisement copy, blog posts, social media content and landing pages.

9.4. For SEO campaigns, the Service Provider shall conduct keyword research and optimise website content to improve search rankings and organic traffic, using only ethical (white-hat) practices.

9.5. The Service Provider shall adhere to ethical digital marketing practices and comply with all Applicable Laws, including the Advertising Standards Council of India (ASCI) Code, the Consumer Protection Act, 2019, the Consumer Protection (E-Commerce) Rules, 2020, applicable guidelines on misleading advertisements and endorsements, the Information Technology Act, 2000 and the Digital Personal Data Protection Act, 2023.

9.6. The Service Provider shall collaborate with the Client and reasonably consider the Client's input and feedback in campaign strategy and execution.

9.7. The Service Provider shall continuously monitor campaign performance and make data-driven optimisations.

9.8. The Service Provider shall maintain open and regular communication with the Client and respond to Client inquiries in a timely manner.

§ 10. OBLIGATIONS OF THE CLIENT

10.1. The Client shall promptly provide all necessary information, documents and access to relevant systems or platforms, including website credentials, analytics accounts and marketing materials.

10.2. The Client shall be responsible for supplying original content, images and media, and warrants that it has all necessary rights, licences and consents in respect thereof.

10.3. The Client shall promptly review and approve digital marketing materials as requested by the Service Provider.

10.4. The Client shall provide timely feedback and responses to facilitate efficient campaign management.

10.5. The Client agrees to consider and, where feasible, implement recommendations made by the Service Provider.

10.6. The Client shall ensure that sufficient funds are available to cover advertising budgets and shall make timely payments for advertising costs directly to the advertising platforms, unless otherwise agreed in writing.

10.7. Any discrepancy or concern relating to campaign performance shall be promptly communicated to the Service Provider.

10.8. The Client shall ensure that all content it provides complies with Applicable Laws, including copyright, trademark and data protection laws, and shall be solely responsible for the truthfulness of claims made in respect of its products and services.

10.9. The Client shall review and approve project milestones and other critical aspects within the agreed timeframes.

§ 11. TERM AND TERMINATION

11.1. This Agreement shall commence on the Effective Date ("Commencement Date") and continue in full force until ________ (the "Term"), unless terminated earlier as provided herein. The Agreement may be renewed by mutual written consent. A Party desirous of renewal shall serve written notice not less than 30 (thirty) business days prior to the end of the Term, which the receiving Party may accept or reject.

11.2. This Agreement may be terminated:

11.2.1. by either Party upon providing ________ (________) business days' prior written notice to the other Party; or

11.2.2. by the Client, in the event of a material breach by the Service Provider, by giving 15 (fifteen) business days' written notice stating the reasons, where such breach is not cured within the notice period; or

11.2.3. by either Party, with immediate effect, if the other Party is convicted of any offence involving moral turpitude (including fraud or embezzlement) or engages in conduct likely to bring the other Party into disrepute; or

11.2.4. by the Service Provider, in the event of a material breach by the Client, by giving 15 (fifteen) business days' written notice stating the reasons, where such breach is not cured within the notice period; or

11.2.5. by either Party, with immediate effect, if the other Party becomes insolvent, is wound up or has a resolution professional/liquidator appointed under the Insolvency and Bankruptcy Code, 2016.

11.3. Upon receipt of a notice of termination, the Service Provider shall inform the Client of the extent of performance completed and shall collect and deliver to the Client all work product and Deliverables in the manner prescribed by the Client. The Service Provider shall be paid for all work performed through the date of receipt of the notice of termination.

11.4. Notwithstanding anything to the contrary, the provisions relating to Intellectual Property, Confidentiality, Indemnity, Limitation of Liability, Dispute Resolution, Governing Law and any other provisions which by their nature are intended to survive shall survive the expiry or termination of this Agreement.

§ 12. INTELLECTUAL PROPERTY RIGHTS

12.1. All intellectual property rights, including copyrights, trademarks, designs and other proprietary rights, in the Deliverables developed by the Service Provider specifically for the Client in the course of providing the Services shall, upon full payment of the applicable fees, vest exclusively in the Client.

12.2. The Service Provider hereby assigns, and agrees to assign, to the Client all right, title and interest in and to such Deliverables, and shall execute such documents and take such actions as may be reasonably necessary to give effect to such assignment, including in accordance with the Copyright Act, 1957 and the Trade Marks Act, 1999.

12.3. Notwithstanding the foregoing, any pre-existing intellectual property, tools, methodologies, know-how or materials owned by the Service Provider prior to or independent of this Agreement shall remain its sole property. To the extent such pre-existing materials are incorporated into the Deliverables, the Service Provider grants the Client a non-exclusive, perpetual, royalty-free licence to use such materials solely in connection with the Deliverables.

§ 13. CONFIDENTIALITY

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13.1.1. is or becomes publicly known through no act or omission of the Service Provider;

13.1.2. is disclosed to third parties by the Client without restriction; or

13.1.3. is approved for release by written authorisation of the Client; or

13.1.4. is required to be disclosed pursuant to any order of a court or Government Body, provided that the Service Provider gives prompt prior written notice to the Client to enable it to seek protective relief.

13.2. Upon termination of this Agreement, or at any time upon request, the Service Provider shall promptly deliver to the Client all notes, memoranda, drawings, records, reports, files, source codes and other documents (and all copies) in its possession or control which contain Confidential Information.

13.3. The Service Provider agrees to hold Confidential Information in the strictest confidence, to use it solely for the performance of its obligations hereunder, and to disclose it only to its employees or agents with a need to know.

13.4. The Service Provider shall not disclose Confidential Information to any employee or agent who has not executed a written undertaking binding such person not to use or disclose the Confidential Information except as permitted herein. The Service Provider shall promptly notify the Client of any unauthorised possession, use or disclosure of Confidential Information.

13.5. The Service Provider acknowledges that the Client's Confidential Information is a valuable and unique asset, and agrees to keep its negotiations and performance hereunder strictly confidential.

13.6. Nothing in this Agreement grants either Party any rights in the other Party's intellectual property or Confidential Information except the limited right to use the same in connection with the Services. All such rights shall continue to vest in the disclosing Party.

13.7. To the extent the Service Provider Processes any Personal Data on behalf of the Client, the Service Provider shall act solely as a Data Processor under the Digital Personal Data Protection Act, 2023, shall Process such Personal Data only on the documented instructions of the Client, shall implement reasonable security safeguards, and shall, upon expiry or termination, delete or return all such Personal Data. The Service Provider shall promptly notify the Client of any personal data breach.

§ 14. SUB-CONTRACTORS

14.1. The Service Provider may, with the Client's prior written consent, engage such third parties and sub-contractors as it considers appropriate for the performance of the Services, but shall remain fully responsible for the due performance of the Services.

14.2. The Service Provider shall be solely responsible for all payments to its employees, agents or sub-contractors, including salary, statutory benefits and all amounts due under applicable labour and social security legislation, and shall comply with the Code on Wages, 2019 and other applicable labour codes.

14.3. The Service Provider shall be fully responsible for any act or omission of such third parties or sub-contractors.

§ 15. FORCE MAJEURE

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15.2. If the Force Majeure Event continues for more than 7 (seven) business days, the Parties shall mutually agree on the future course of action. If it continues for more than 21 (twenty-one) business days, either Party may terminate this Agreement by written notice.

§ 16. INDEMNITY

16.1. Each Party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other Party, its officers, employees and agents (the "Indemnified Party") from and against any claims, losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising out of (i) any breach of this Agreement; (ii) any violation of Applicable Law; or (iii) any infringement of third-party rights, in each case attributable to the acts or omissions of the Indemnifying Party.

16.2. The Indemnified Party shall promptly notify the Indemnifying Party of any claim, and the Indemnifying Party shall have the right to control the defence and settlement, provided that no settlement adversely affecting the Indemnified Party shall be made without its prior written consent.

§ 17. LIMITATION OF LIABILITY

17.1. Save in respect of breach of confidentiality, infringement of intellectual property, indemnity obligations, fraud, gross negligence or wilful misconduct, the aggregate liability of either Party arising out of or in connection with this Agreement shall not exceed the total fees paid or payable by the Client to the Service Provider under this Agreement during the ________ preceding the event giving rise to the claim.

17.2. Neither Party shall be liable to the other for any indirect, incidental, special or consequential loss, including loss of profits, goodwill or business opportunity.

§ 18. NON-SOLICITATION AND NON-COMPETE

18.1. During the Term and for a period of ________ thereafter, the Service Provider shall not, without the prior written consent of the Client, solicit or entice away any employee, customer or supplier of the Client with whom it had dealings in the course of providing the Services.

18.2. The Service Provider agrees that during the Term it shall not, in respect of any competing engagement, use or disclose the Client's Confidential Information. The Parties acknowledge that, having regard to Section 27 of the Indian Contract Act, 1872, any restraint of trade extending beyond the Term shall be limited to the protection of Confidential Information and goodwill and shall be enforced only to the extent permitted by Applicable Law.

§ 19. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity shall not affect any other provision, and this Agreement shall be construed as if the invalid provision had never been contained herein. The Parties shall replace any such provision with a valid and enforceable provision that most nearly gives effect to the original intent.

§ 20. AMENDMENTS

No change, alteration, amendment or modification to this Agreement shall be effective unless made in writing and signed by the authorised representatives of both Parties.

§ 21. DISPUTE RESOLUTION

21.1. Any dispute, difference or claim arising out of or in connection with this Agreement shall, as far as possible, be resolved amicably between the Parties through mutual discussions.

21.2. Failing amicable resolution within 30 (thirty) days, the dispute shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act, 1996, by a sole arbitrator to be mutually appointed by the Parties. The seat and venue of arbitration shall be ________, the language of arbitration shall be English, and the award shall be final and binding on the Parties.

21.3. Subject to § 21.2, the courts at ________ shall have exclusive jurisdiction over any matter arising out of this Agreement.

21.4. If either Party engages legal counsel to enforce any rights under this Agreement, the prevailing Party shall be entitled to recover reasonable costs and legal fees as may be awarded.

§ 22. INDEPENDENT PARTIES

22.1. Nothing in this Agreement creates a joint venture, partnership, agency or employment relationship between the Parties.

22.2. The Service Provider is an independent contractor and shall not be construed as an employee, partner or agent of the Client.

22.3. The Client does not undertake to perform any obligation of the Service Provider, whether by statute or contract.

§ 23. EXCLUSIVITY

Nothing in this Agreement restricts a Party or its group companies from discussing similar arrangements with any other party or regulatory body in India, subject always to the confidentiality obligations under § 13.

§ 24. ANNOUNCEMENTS

Neither Party shall make any news release, public announcement, give interviews, issue or publish advertisements, or otherwise publicise this Agreement or its contents, the Confidential Information or any matter relating hereto, without the prior written approval of the other Party.

§ 25. NOTICES

All notices, requests, consents, approvals and other communications under this Agreement shall be in writing and shall be deemed duly given when delivered by hand, sent by registered post/courier with acknowledgement due, or by email to the addresses set out below.

In the case of the Client:

Attention: ________

Address: ________

Email: ________

In the case of the Service Provider:

Attention: ________

Address: ________

Email: ________

Either Party may change its address by giving the other Party 10 (ten) business days' prior written notice.

§ 26. GOVERNING LAW

This Agreement and all matters arising out of or relating to it shall be governed by and construed in accordance with the laws of India.

§ 27. STAMP DUTY

This Agreement shall be stamped in accordance with the applicable stamp duty payable under the Indian Stamp Act, 1899 and/or the relevant State stamp legislation. The stamp duty and registration charges, if any, shall be borne by ________.

§ 28. COUNTERPARTS

This Agreement may be executed in two or more counterparts, including by electronic signature in accordance with the Information Technology Act, 2000, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

§ 29. ENTIRE AGREEMENT

This Agreement, together with its Annexures, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, correspondence, agreements, understandings, duties or obligations between the Parties relating thereto.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day, month and year first hereinabove written, namely on ________.

FOR AND ON BEHALF OF THE SERVICE PROVIDER

Name: ________

Designation: ________

Date:

Signature:

FOR AND ON BEHALF OF THE CLIENT

Name: ________

Designation: ________

Date:

Signature:

WITNESS-1

Name: ________

Govt. ID name and number: ________

Address: ________

Signature:

WITNESS-2

Name: ________

Govt. ID name and number: ________

Address: ________

Signature:

ANNEXURE - A

(Scope of Services and Advertising Budget)

________