HOARDING / ADVERTISEMENT SITE LICENCE
BETWEEN
__________, __________, of __________ (the "Licensor");
AND
__________, __________, of __________ (the "Licensee").
The Licensor and the Licensee are each a "Party" and together the "Parties".
RECITALS
A. The Licensor is the owner of, or is otherwise lawfully entitled to grant rights over, the site described in clause 1 below.
B. The Licensee wishes to erect or use a hoarding structure at that site to display advertisements for a fee, and the Licensor has agreed to grant that right on the terms of this Licence.
C. The Parties record that this Licence grants the Licensee a licence within the meaning of s.52 of the Indian Easements Act, 1882 to do something at the Site that would otherwise not be lawful for it to do — erect or maintain a hoarding structure and display advertisements on it — and does not grant, and is not intended to grant, exclusive possession of the Site, a lease, sub-lease, tenancy or easement, or any other estate or interest in the Site or in the land or building of which it forms part. Clause 12 states this at length, because it is what keeps this Licence outside the stamp duty and registration regime that applies to a lease.
NOW THIS LICENCE WITNESSES as follows.
1. THE SITE
1.2 Where the Licensor holds the Site under an allotment, lease or other grant from a development authority, an Estate Officer or another allotting authority, clause 11 applies.
2. THE HOARDING STRUCTURE
3. TERM
4. LICENCE FEE
5. USE OF THE SITE AND CONTENT OF ADVERTISEMENTS
5.1 The Licensee shall not display, or permit to be displayed, any advertisement that is unlawful, obscene, defamatory, or that infringes a third party's trade mark, copyright or other right, or that is likely to bring the Site, the Licensor or the locality into disrepute.
5.2 The Licensee shall not use the Site for any purpose other than erecting, maintaining and displaying the hoarding structure and advertisements on it under this Licence, and shall not carry on any business of its own from the Site itself.
6. SUB-LICENSING TO ADVERTISERS
6.2 Apart from sub-licensing advertising space as permitted by clause 6.1, the Licensee shall not assign, transfer or sub-license the rights granted by this Licence, or part with possession of the Site, without the Licensor's prior written consent.
7. MUNICIPAL AND ADVERTISEMENT PERMISSIONS
7.1 A hoarding or outdoor advertisement of this kind is commonly regulated by the municipal corporation, municipal council or committee, or other local body having jurisdiction over the Site — under the Punjab Municipal Corporation Act, 1976 or the Punjab Municipal Act, 1911 for a Site in the State of Punjab, and under the Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 for a Site in the Union Territory of Chandigarh — and commonly needs a permission, licence or no-objection certificate from that body, and may attract a fee, a tax, or both. The permission actually required, the authority that grants it and the fee or tax payable on it depend on the local body having jurisdiction over the Site and on the nature, size and location of the hoarding structure, and this Licence does not, and cannot, state one procedure or one figure for it.
7.2 The Licensee shall identify the local body having jurisdiction over the Site, and shall apply for, obtain, pay for and keep current, at its own cost, every permission, licence or no-objection certificate that body requires for the hoarding structure and the advertisements displayed on it, before erecting or using the structure, and shall renew each of them for as long as this Licence continues. The Licensee shall give the Licensor a copy of each such permission on request.
7.3 If a fine, penalty, removal order or other enforcement action is taken against the hoarding structure because it was erected or kept without a permission required under clause 7.2, or otherwise than in accordance with it, the Licensee shall bear that fine or penalty, shall comply with the enforcement action at its own cost, and shall indemnify the Licensor against it — except to the extent it results from the Licensor's own failure under clause 11.
8. STRUCTURAL SAFETY AND STABILITY
8.1 A free-standing hoarding structure of the kind this Licence contemplates carries its own structural safety risk, independent of the advertisement permission referred to in clause 7 — a poorly founded, poorly maintained or storm-damaged structure can fail and cause injury or damage. The Licensee shall, before erecting the structure, have its design and foundation certified as structurally sound by a qualified structural engineer, shall carry out the erection strictly in accordance with that certification, and shall have the structure re-inspected at reasonable intervals and after any storm, heavy wind or other event capable of affecting its stability.
8.2 This Licence does not, and cannot, state the specific structural or safety code, wind-load standard, or certifying authority applicable to the Site, because that depends on the structure's height, location and the practice of the local body having jurisdiction over the Site. See lawyerShouldCheck on why this clause is deliberately general rather than a citation to a specific code.
8.3 If the hoarding structure fails, collapses or causes injury or damage to any person or property, the Licensee shall bear full responsibility for it, and shall indemnify the Licensor against any claim, liability, fine or proceeding arising from it, except to the extent caused by the Licensor's own act or default.
9. MAINTENANCE
9.2 If the Licensor reasonably considers the hoarding structure or an advertisement on it to have become damaged, defaced, illegible or unsafe, it may give the Licensee written notice requiring repair, replacement or removal, which the Licensee shall carry out within fifteen days, or sooner if there is actual danger to persons or property. If the Licensee does not, the Licensor may itself carry out the repair, remove the structure or make it safe, and recover the reasonable documented cost from the Licensee, without liability for damage to the structure caused by that removal.
10. INSURANCE
11. ALLOTMENT AND OTHER CONDITIONS AFFECTING THE SITE
11.1 Where the Licensor holds the Site under an allotment or lease from a development authority, an Estate Officer or another allotting authority, the conditions of that allotment or lease may separately restrict or prohibit a hoarding or advertisement structure of this kind. The Licensor shall tell the Licensee in writing of any such condition it is aware of before the structure is erected, and the Licensee shall comply with a condition it has been told of in this way.
12. NATURE OF THIS LICENCE — NOT AN INTEREST IN THE SITE
12.1 This Licence grants the Licensee a bare licence, within the meaning of s.52 of the Indian Easements Act, 1882, to do something at the Site that would otherwise not be lawful for the Licensee to do — erect, install, display and maintain the hoarding structure and advertisements referred to in clauses 1 and 2. It does not grant, and is not intended to grant, exclusive possession of the Site, a lease, sub-lease, tenancy or easement, or any other estate or interest in the Site or in the land or building of which it forms part, and no such interest arises by this Licence, by anything done under it, or by the passage of time, however long this Licence continues or is renewed.
12.2 Because this Licence creates a licence and not an interest in immovable property, it does not attract the stamp duty charged on a lease under Article 35 of Schedule I-A to the Indian Stamp Act, 1899 as applicable in Punjab or in Chandigarh, and neither s.107 of the Transfer of Property Act, 1882 nor s.17(1)(d) of the Registration Act, 1908 is engaged by it. See clause 13 for what duty, if any, this Licence does attract, and see lawyerShouldCheck on the footprint given over to the structure, which is the one fact that could put this characterisation in doubt.
13. STAMP DUTY AND REGISTRATION
13.1 This Licence does not transfer, create, limit or extinguish any right, title or interest in the Site, for the reasons stated in clause 12, so nothing in it attracts the stamp duty charged on a lease of immovable property, whether in the State of Punjab or in the Union Territory of Chandigarh.
13.2 What this Licence does create is a written agreement between the Parties, and an agreement not otherwise specifically provided for is chargeable under Article 5 of Schedule I-A to the Indian Stamp Act, 1899 as applicable in the State of Punjab and as applicable in the Union Territory of Chandigarh, at a fixed duty rather than one computed on the licence fee or the deposit. The Parties should have the current figure under that Article confirmed with the Collector of Stamps or a licensed stamp vendor before this Licence is signed, and should stamp it accordingly if either Party wants to rely on it in evidence without first paying the deficient duty and any penalty under the Indian Stamp Act, 1899.
13.4 For the reasons given in clause 12, this Licence is not compulsorily registrable in Punjab or in Chandigarh, whatever period it runs for or is renewed to.
14. TERMINATION
14.2 The Licensor may terminate this Licence with immediate effect by written notice if the Licensee is in breach of clause 5 (Use of the Site and Content of Advertisements), clause 7 (Municipal and Advertisement Permissions) or clause 8 (Structural Safety and Stability) and does not remedy that breach within fifteen days of written notice to do so, or immediately if the breach concerns actual danger to persons or property.
14.3 Terminating this Licence does not affect a right or liability that has already accrued, including the Licensor's rights under clause 7.3, clause 8.3 or clause 15.
15. REMOVAL AND REINSTATEMENT
15.2 If the Licensee does not do so within that period, the Licensor may remove the structure and reinstate the Site itself, or through a contractor, and recover the reasonable documented cost from the Licensee, without liability for damage to the structure caused by its removal.
15.3 This clause 15 survives the ending of this Licence.
16. INDEMNITY
16.1 The Licensee shall indemnify the Licensor against every claim, demand, fine, penalty, liability, loss or cost the Licensor suffers arising out of the erection, maintenance, use, content or removal of the hoarding structure, or out of the Licensee's breach of this Licence, except to the extent caused by the Licensor's own act or default.
17. NOTICES
17.1 Notices under this Licence shall be in writing and delivered by hand against acknowledgment, or by registered post or reputed courier with proof of delivery, to the Licensor at __________ and to the Licensee at __________, or to such other address as a Party notifies in writing.
18. GOVERNING LAW AND JURISDICTION
18.1 This Licence is governed by the laws of India as in force at the place where the Site is situated.
19. GENERAL
19.1 This Licence is the entire agreement between the Parties about the Site and supersedes every prior discussion about it.
19.2 No amendment to this Licence is effective unless made in writing and signed by both Parties.
19.3 A failure or delay by a Party in enforcing this Licence is not a waiver of it.
19.4 If a provision of this Licence is held invalid or unenforceable, the rest of it continues in effect.
19.5 Nothing in this Licence creates a partnership, joint venture or agency between the Parties, or makes either Party the agent of the other.
SCHEDULE — PARTICULARS
FOR THE LICENSOR
__________
Signature: ______________________________
Date: ______________________________
FOR THE LICENSEE
__________
Signature: ______________________________
Date: ______________________________
WITNESSES