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Advertising Services Agreement

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Advertising Services
Agreement
This professionally-drafted document is for an agreement between a company and an
advertising agency to produce web-based advertising. It includes the material terms of
the agreement including the services to be provided, the compensation arrangement
and the duration of the agreement. This particular contract is for the development of an
internet-based advertising campaign and can be customized to ensure the specific
terms of the parties' agreement are addressed. This document is useful for an
advertising agency or by a company that hires an advertising agency.
ADVERTISING SERVICES AGREEMENT
THIS ADVERTISING SERVICES AGREEMENT (the “Agreement”) made this ____ day of
_________, 2____, by and between ______________, located at ________________ (“Client”)
and ____________, located at _________________ (“Agency”) hereinafter collectively referred
to as the “Parties.”
WHEREAS Client desires to engage the services of Agency and Agency desires to provide
its/his/her services to Client and to perform the work hereinafter set out.
NOW THEREFORE the Parties hereby acknowledge and agree as follows:
I
ADVERTISING SERVICES
1.1 Client engages Advertising Agency to perform the following services (the “Advertising
Services”):
A. Formulate and submit internet-based advertising campaigns and recommendations
including cost estimates for the approval of Client;
B. After approval by Client, create and prepare advertising for consumer and trade
print, broadcast and outdoor media;
C. Develop a web-media strategy and plan for an agreed upon number of test markets
and support the proposed media plan with advertising strategy and rationales;
D. Purchase all materials and services necessary for the production of finished
advertisements;
E. Execute all advertising in finished form;
F. Develop and provide Client with rough concepts for certain significant collateral
materials including but not limited to sales promotion materials, brochures and
store signs.
1.2 Agency shall make no claims, promises or guarantees, expressed or written as to the
effectiveness of the Advertising Services to be performed for and on behalf of Client by
Agency.
II
FEES
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2.1 Client acknowledges and agrees that it shall pay to Agency the sum of
_______________ ($_____) Dollars (the “Advertising Fees”) per month in respect of the
Advertising Services to be performed by Agency for and on behalf of Client.
2.2 Agency shall provide a monthly invoice to Client by the ____ ( ) day of each and
every month in respect of the Advertising Services performed by Agency.
2.3 Client shall pay the Advertising Fees to Agency within ____ ( ) days of receipt of the
invoice. Payment shall be made by cash, check or wire transfer, or by such other means as
the Parties may in writing agree.
2.4 Failure by Client to pay the Advertising Fees due and owing to Agency on or before the
____ (
) day of each and every month will result in Agency ceasing all Advertising
Services for and on behalf of Client, without notice, until such Advertising Fees due and
owing are paid in full by Client.
III
EXPENSES AND MATERIALS
3.1 Agency shall be solely responsible and liable for all expenses incurred in its
performance of the Advertising Services, with the exception of any third party costs, for
example media, or third party services which Client has agreed to prior to Agency incurring
the expense.
3.2 Charges for production materials and
completion of the production job or, if cash
supplier's invoice. For any media purchase or
commission, Agency shall ensure that the
commissions and discounts.
services shall be billed by Agency upon
discounts are available, upon receipt of the
service for which Agency is not entitled to a
charges to Client are net of all agency
3.3 Agency shall invoice Client for all costs where possible in advance of Agency's
payment date to allow for prepayment by the Client to allow for any available prepayment or
similar discount.
3.4 Client and Agency hereby acknowledge and agrees that Agency shall provide any and
all materials and equipment which may be necessary for the completion of the Advertising
Services by Agency. In the event that Agency requires materials, which may include
proprietary intellectual property, for example, logos, style book, etc. Client will provide said
materials without any delay.
IV
INTELLECTUAL PROPERTY
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4.1 Agency warrants to the fullest extent possible under law, that Client shall own any and
all right, title and interest in including copyrights, trade secret, patent and other intellectual
property rights, with respect to any copy, photograph, advertisement, music, lyrics, or
other work or material created by Agency or at Agency's direction for Client under this
agreement.
4.2 Upon termination, Client agrees that any advertising, merchandising, package, plan or
idea prepared by Agency and submitted to Client which Client has chosen not to utilize, shall
remain the property of Agency, unless Client has paid Agency for its services in preparing
such item or material. Client agrees to return to Agency any copy, artwork, plates or other
physical embodiment of such creative work relating to any such idea or plan which may be
in Client's possession at termination or expiration of the agreement.
V
TERM AND TERMINATION
5.1 This Agreement shall commence on the ____ day of ______________, 2____ (the
“Effective Date”) and shall continue for a period of _______ year(s) (the “Termination
Date”) or until such time as Agency completes the Advertising Services contemplated herein.
[Instruction: In lieu of a fixed Term, the Parties may agree to a term that is based on a
specific project for which Advertising Services are required. The Agreement will then
automatically terminate at the end of the project or by Client giving Advertising a period of
notice, for example sixty (60) days.]
5.2 Either party may terminate this Agreement in the event of one party providing to the
other party a notice of Termination for Cause. “Termination of Cause” shall be defined as
any event constituting a material breach of this Agreement including non-payment of
Advertising Fees which the party in breach has failed to cure after receiving a notice of
default as provided in Article IX.
5.3 The commencement of any bankruptcy, insolvency, dissolution, or other proceeding
under any applicable bankruptcy or debtor’s relief law, by or against either party and, in the
case of an involuntary bankruptcy proceeding brought against either party, if such proceeding
is not discharged within 180 days of the commencement thereof;
5.4 The permanent suspension, termination or dissolution of business or the appointment of
a receiver, trustee or similar officer to manage any substantial part of the assets or business
operations of either party.
VI
INDEPENDENT CONTRACTOR and CONFIDENTIALITY
6.1 Client and Agency hereby acknowledge and agree that at all time or times, Agency is
an independent contractor, and at no time or times shall it, nor any of Agency’s assistants or
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subcontractors be deemed to be any employee, agent or affiliate of Client’s or receive any
employee benefits of Client.
6.2 Client acknowledges that it/he/she will obtain the Advertising Services of Agency on a
non-exclusive basis.
[or]
6.2 During the term of this Agreement, Agency may not accept employment from, render
services to any individual or entity in connection with any product or service directly
competitive with or similar to any product or service of Client with respect to which the
Agency is providing any service pursuant to this Agreement.
6.3 Client acknowledges and agrees that Agency will have the sole right to control and
direct the means, manner and method by which the Advertising Services will be performed
providing that Client shall at all times have the right to be kept informed and have reasonable
input.
6.4 Client acknowledges and agrees that Agency may throughout the duration of this
Agreement, hire assistants or subcontractors to perform the Advertising Services
contemplated in this Agreement.
6.5 If requested, either party shall execute a Confidentiality/Non-Disclosure Agreement
contemporaneously with the execution of this Agreement.
VII
TAXES
7.1 Agency shall be solely responsible and liable to remit any and all required income taxes
and any other taxes or statutory withholdings which may be due and payable to the relevant
governmental authority in connection with the Agency’s performance of the Advertising
Services.
VIII
DISPUTE RESOLUTION [Instruction: Optional]
8.1 In the event a dispute arises under this Agreement, Client and Agency hereby agree to
attempt to resolve such dispute with a mutually agreed upon mediator. Such mediation shall
occur in the City of ______________. Any costs and fees other than attorney fees shall be
shared equally between Client and Agency. If it proves impossible to arrive at a mutually
satisfactory solution, Client and Agency hereby agree to submit the dispute to binding
arbitration under the rules of the American Arbitration Association, in the same city or
region, conducted on a confidential basis pursuant to the laws of the governing jurisdiction.
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8.2 Any decision or award as a result of any such arbitration proceeding shall include the
assessment of costs, expenses and reasonable attorney's fees and shall include a written
determination of the arbitrators. Absent an agreement to the contrary, any such arbitration
shall be conducted by an arbitrator experienced in music industry law. An award of
arbitration shall be final and binding on Client and Agency and may be confirmed in a court
of competent jurisdiction. The prevailing party shall have the right to collect from the other
party its reasonable costs and attorney fees incurred in enforcing this Agreement.
IX
GENERAL PROVISIONS
9.1 This Agreement shall not be amended or altered without the prior written consent of the
Parties.
9.2
No waiver by the Parties of any right shall be construed as a waiver of any other right.
9.3 Client shall indemnify and hold harmless the Agency and its directors, officers, agents
and employees from and against any and all expenses, losses, damages, liabilities, demands,
charges, costs and claims of any kind or nature whatsoever in respect of the acts, omissions,
transactions, duties, obligations or responsibilities of the Agency, save and except where
such expenses, losses, damages, liabilities, demands, charges, costs or claims are caused by
acts or omissions of the Agency done or suffered in breach of its standard of care or through
gross negligence, willful misconduct, willful neglect, default or a material failure to comply
with applicable laws, regulations or restrictions and the provisions set forth in this
Agreement.
9.4 In the event of non-performance by either party of any of its obligations contained
herein, the non-defaulting party shall serve the defaulting party with written notice of the
alleged breach. The defaulting party shall have _____ (___) days from the date of such
notice to cure and rectify any non-performance or non-compliance. Upon the correction of
any non-performance or non-compliance by the defaulting party, the Agreement shall
continue. In the event that the defaulting party fails to correct any non-performance or noncompliance issue within the time frame set out above, the non-defaulting party may terminate
this Agreement immediately and without further notice.
9.5 In the event a court of competent jurisdiction finds any provision of this Agreement
invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to
effect the intent of the Parties.
9.6 Any notice required under the terms of this Agreement shall be in writing sent to the
Parties at the addresses stated below, by certified or registered mail, return receipt requested
or by air or ground courier such as Federal Express, United Parcel Service, etc. Such notices
may also be sent by facsimile transmission to such telephone number as either party may
give to the other during the term hereof. Any notices to be delivered pursuant to this
Agreement shall be delivered to:
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in the case of Client to:
Fax: (___)
in the case of Agency to:
Fax: (___)
9.7 This Agreement constitutes the entire agreement between the Client and the Agency and
supersedes all prior agreements whether oral or written.
9.8 This Agreement shall be governed by the laws of the State of _____________________.
[Instruction: If Article VIII Dispute Resolution is not used, include this provision here]
Any action, suit or other proceeding initiated by either party against the other under or in
connection with, this Agreement may be brought only in any federal or state court in the
State of _______, as the party bringing such action, suit or proceeding shall elect, having
jurisdiction over the subject matter thereof. The Parties hereby submit themselves to the
jurisdiction of any such court, and agree to refrain from initiating or maintaining any legal
proceeding in any other forum or jurisdiction. In any suit regarding the Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees and costs.
9.9 This Agreement may be executed in several counterparts, each of which when so
executed shall be deemed to be an original and such counterparts together shall constitute one
and the same instrument and shall be effective as of the formal date hereof. This Agreement
may be executed and transmitted via e-mail and/or facsimile transmission and in such event
shall be effective and binding on the Parties hereto and their successors and assigns as if
originally executed.
IN WITNESS WHEREOF the Parties have executed this Agreement on the day and year first
written above.
(Client)
(Agency)
By______________________
Name:
By___________________
Name:
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Title:
Date:
Title:
Date:
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