ADVERTISING AGENCY
AGREEMENT
THIS
AGREEMENT (hereinafter referred to as the
"Agreement") made and executed at
[Place] this [Date], by and between [Advertiser
Name] a company incorporated under the Companies
Act, 1956 and having its registered office at
[address](hereinafter referred to as the
"Advertiser", which expression shall, unless it
be repugnant to the context or meaning thereof,
be deemed to mean and include its successors and
assigns) of the ONE PART AND
[Agency Name] a company incorporated under the
Companies Act, 1956 and having its registered
office at [address](hereinafter referred to as
the "Agency", which expression shall, unless it
be repugnant to the context or meaning thereof,
be deemed to mean and include its successors and
assigns) of the OTHER PART.
WHEREAS
the Agency is in the business of providing
advertising agency services for a fee.
WHEREAS
the Advertiser desires to engage Agency to
render, and Agency desires to render to
Advertiser, certain advertising agency services,
all as set forth.
NOW,
THEREFORE, in consideration of the mutual
agreements and covenants herein contained the
parties hereto agree as follows:
1.
Engagement.
Advertiser
engages Agency to render, and Agency agrees to
render to Advertiser, certain services in
connection with Advertiser's planning, preparing
and placing of advertising for certain of
Advertiser's products as follows:
A.
Analyze Advertiser's current and proposed
products and services and present and potential
markets.
B.
Create, prepare and submit to Advertiser for its
prior approval advertising ideas and programs.
C.
Prepare and submit to Advertiser for its prior
approval estimates of costs and expenses
associated with proposed advertising ideas and
programs.
D.
Design and prepare, or arrange for the design and
preparation of, advertisements.
E.
Perform such other services as Advertiser may
request from time to time such as, but not
limited to, direct mail advertising preparation,
speech writing, publicity and public relations
work, market research and analysis.
F.
Order advertising space, time or other means to
be used for publication of Advertiser's
advertisements, at all times endeavoring to
secure the most efficient and advantageous rates
available.
G.
Proof for accuracy and completeness of
insertions, displays, broadcasts, or other forms
of advertisements.
H.
Audit invoices for space, time, material
preparation and charges.
2.
Products.
Agency's
engagement shall relate to the following products
and services of Advertiser: [Products]
3.
Exclusivity.
Agency
shall be the [Exclusive or Non-Exclusive]
advertising agency in the Republic of India for
Advertiser with respect to the products described
in Clause 2 above.
4.
Compensation.
A.
Agency shall receive an amount equal to [Media
Commission Rate] of the gross charges levied by
media for advertising placed therewith by Agency
pursuant to this Agreement; and [Non-Media
Commission Rate] after volume discount, of the
charges of suppliers of services or properties,
such as finished art, comprehensive layouts, type
composition, photostats, engravings, printing,
radio and television programs, talent, literary,
dramatic and musical works, records and exhibits,
purchased by Agency on Advertiser's authorization
during the term of this Agreement; provided that:
(i)
No percentage will be added to Agency charges for
packing, shipping, express, postage, telephone,
telex, fax, travel expenses and other out of
pocket expenses of Agency personnel; and
(ii)
Agency's commission for outdoor advertising will
be the standard rate allowed advertising agencies
when such rate is less than [Outdoor Advertising
Commission Rate].
B.
For those items where Agency is not compensated
on a commission basis, Advertiser shall pay
Agency on an hourly basis for services provided
hereunder. The rate will be determined by the
type of services provided and the person or
persons providing such services, but in no event
shall the rate exceed [Maximum Hourly Rate] per
hour. Advertiser may elect in advance to be
charged on this hourly rate basis. If Advertiser
fails to notify Agency of its choice, it shall be
presumed that Advertiser elected to be charged on
an hourly rate basis.
C.
In the event that Agency undertakes, at
Advertiser's request subject to Advertiser's
prior approval, special projects such as those
described in Clause 1.F above, Agency shall
prepare an estimate of total charges for any such
special project, including therein any charges
for materials or services purchased from outside
sources. In the event that Advertiser elects to
proceed with the special project based upon
Agency's estimated cost, Agency shall perform the
services with respect to such special project at
its estimated cost, subject to modification as
mutually agreed by the parties.
D.
For any special project or other services
provided by Agency pursuant to this Agreement
upon which the parties have not agreed as to
charges, Advertiser shall pay Agency at its
regular hourly rates, not to exceed [Rupees
Amount] per hour.
E.
Advertiser shall not be obligated to reimburse
Agency for any travel or other out-of-pocket
expenses incurred in the performance of services
pursuant to this Agreement unless expressly
agreed by Advertiser in advance.
5.
Billing.
A.
Agency shall invoice Advertiser for all media
costs where possible in advance of Agency's
payment date to allow for prepayment by the
Advertiser so that Advertiser may receive the
benefit of any available prepayment or similar
discount. For any media purchase or service for
which Agency is not entitled to a commission,
Agency shall ensure that the charges to
Advertiser are net of all agency commissions and
discounts.
B.
Charges for production materials and services
shall be billed by Agency upon completion of the
production job or, if cash discounts are
available, upon receipt of the supplier's
invoice.
C.
On all outside purchases other than for media,
Agency shall attach to the invoice proof of the
supplier's charges.
D.
All cash discounts on Agency's purchases
including, but not limited to, media, art,
printing and mechanical work, shall be available
to Advertiser, provided that Advertiser meets
Agency's requisite billing terms and there is no
outstanding indebtedness of Advertiser to Agency
at the time of the payment to the supplier.
E.
Rate or billing adjustments shall be credited or
charged to Advertiser on the next following
regular invoice date or as soon as otherwise
practical.
F.
Invoices shall be submitted in an itemized format
and shall be paid by Advertiser within thirty
(30) days of the invoice date.
6.
Competitors.
During
the term of this Agreement, Agency [May Not]
accept employment from, render services to,
represent or otherwise be affiliated with any
person, firm, corporation or entity in connection
with any product or service directly or
indirectly competitive with or similar to any
product or service of Advertiser with respect to
which the Agency is providing any service
pursuant to this Agreement.
7.
Cost Estimates.
Agency
shall not commence work on any project pursuant
to this Agreement without first estimating costs
for preparation, including copy, service, layout,
art, engraving, typography, processing, paste up
and production. After determining the estimated
cost, completion of the work shall be subject to
Advertiser's prior approval.
8.
Audit Rights.
Agency
agrees that following reasonable prior notice any
and all contracts, agreements, correspondence,
books, accounts and other information relating to
Advertiser's business or this Agreement shall be
available for inspection by Advertiser and
Advertiser's outside accountants, at Advertiser's
expense.
9.
Ownership and Use.
A.
Agency shall insure, to the fullest extent
possible under law, that Advertiser shall own any
and all right, title and interest in and to,
including copyrights, trade secret, patent and
other intellectual property rights, with respect
to any copy, photograph, advertisement, music,
lyrics, or other work or thing created by Agency
or at Agency's direction for Advertiser pursuant
to this Agreement and utilized by Advertiser.
B.
Upon termination, Advertiser agrees that any
advertising, merchandising, package, plan or idea
prepared by Agency and submitted to Advertiser
(whether submitted separately or in conjunction
with or as a part of other material) which
Advertiser has elected not to utilize, shall
remain the property of Agency, unless Advertiser
has paid Agency for its services in preparing
such item. Advertiser 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 Advertiser's
possession at termination or expiration of this
Agreement.
C.
Materials and advertisements created by Agency
pursuant to this Agreement may be used by
Advertiser outside the United States without
additional compensation, provided that Advertiser
shall be responsible for any additional expense
associated with such use, such as charges for
translation and amounts due talent. Agency's
obligations in Clause 10.A. above shall not apply
with respect to any such foreign use.
10.
Indemnification and Insurance.
A.
Agency shall indemnify and hold Advertiser
harmless with respect to any claims, loss, suit,
liability or judgment suffered by Advertiser,
including reasonable attorney's fees and costs,
based upon or related to any item prepared by
Agency or at Agency's direction, including, but
not limited to, any claim of libel, slander,
piracy, plagiarism, invasion of privacy, or
infringement of copyright or other intellectual
property interest, except where any such claim
arises out of material supplied by Advertiser and
incorporated into any materials or advertisement
prepared by Agency. Agency agrees to procure and
maintain in force during the term of this
Agreement, at Agency's expense, an advertising
agency liability policy or policies having a
minimum limit of at least [Insurance Policy
Amount], naming Advertiser as an additional
insured and loss payee under such policy or
policies.
B.
Advertiser agrees to indemnify and hold Agency
harmless with respect to any claims, loss,
liability, damage or judgment suffered by Agency,
including reasonable attorney's fees and court
costs, which results from the use by Agency of
any material furnished by Advertiser or where
material created by Agency or at the direction of
Agency subject to the indemnification in
subsection A. above is materially changed by
Advertiser. Information or data obtained by
Agency from Advertiser to substantiate claims
made in advertising shall be deemed to be
"material furnished by Advertiser to
Agency".
C.
In the event of any proceeding, litigation or
suit against Advertiser by any regulatory agency
or in the event of any court action or other
proceeding challenging any advertising prepared
by Agency, Agency shall assist in the preparation
of the defense of such action or proceeding and
cooperate with Advertiser and Advertiser's
attorneys.
11.
Term.
The
term of this Agreement shall commence on [Start
Date] and shall continue in full force and effect
until terminated by either party upon at least
ninety (90) days prior written notice, provided
that in no event (except breach) may this
Agreement be terminated prior to [Earliest End
Date]. The rights, duties and obligations of the
parties shall continue in full force during or
following the period of the termination notice
until termination, including the ordering and
billing of advertising in media whose closing
dates follow then such period.
12.
Rights Upon Termination.
A.
Upon termination of the Agreement, Agency shall
transfer, assign and make available to Advertiser
all property and materials in Agency's possession
or subject to Agency's control that are the
property of Advertiser, subject to payment in
full of amounts due pursuant to this Agreement
B.
Upon termination, Agency agrees to provide
reasonable cooperation in arranging for the
transfer or approval of third party's interest in
all contracts, agreements and other arrangements
with advertising media, suppliers, talent and
others not then utilized, and all rights and
claims thereto and therein, following appropriate
release from the obligations therein.
13.
Default.
In
the event of any default of any material
obligation by or owed by a party pursuant to this
Agreement, then the other party may provide
written notice of such default and if such
default is not cured within ten (10) days of the
written notice, then the non-defaulting party may
terminate this Agreement.
14.
Notices.
Any
notice required by this Agreement or given in
connection with it, shall be in writing and shall
be given to the appropriate party by personal
delivery or by certified mail, postage prepaid,
or recognized overnight delivery services.
If
to Advertiser:
[Advertiser]
[Advertiser's
Address]
If
to Agency:
[Agency]
[Agency's
Address]
15.
Headings.
Headings
used in this Agreement are provided for
convenience only and shall not be used to
construe meaning or intent.
16.
Final Agreement.
This
Agreement terminates and supersedes all prior
understandings or agreements on the subject
matter hereof. This Agreement may be modified
only by a further writing that is duly executed
by both parties.
17.
Governing Law.
This
Agreement shall be construed and enforced in
accordance with the Indian law.
IN
WITNESS WHEREOF, the Common seal of the parties
has been hereunto affixed and their authorised
person have set their respective hands and seals
the day and year first hereinabove written.
- SIGNED,
SEALED AND DELIVERED
- by the within
named Advertiser[Advertiser]
- by the hands
of its authorised
- representative/Director
Mr.[name]
- in the
presence of Mr.[name] and
- Mr.[name]
- SIGNED, SEALED AND DELIVERED
- by the withinnamed
Agency[Agency]
- by the hands of its
authorised
- representative/Director
Mr.[name]
- in the presence of Mr.[name]
and
- Mr.[name]
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