Short Form Advertising Short Form Advertising Consultancy Services Agreement for submission by marketing agency to an advertiser
This is an agreement between [insert name of marketing agency] of [insert marketing agency's address] ("the Agency") and [insert name of advertiser] of [insert address of advertiser] ("the Client") dated [· ] .
1.1 The Client appoints the Agency as its sole provider of advertising consultancy services in respect of (insert relevant goods/services of Client) ("the Products") plus any other brands launched or acquired by the Client which the parties agree should be covered by this agreement. The said advertising and consultancy services are described in more detail in Schedule 1 ("the Services").
2.1 The Services will be provided by the Agency during the term of this agreement ("the Term"), which will be regarded as having started on [insert start date] and will continue until terminated under clause 13.
3.1 The Agency shall monitor all production companies and suppliers to whom work is sub-contracted to ensure that:
(a) all deadlines are met and that all agreed budgets are not exceeded;
(b) all necessary consents, clearances and licences are obtained;
(c) all necessary consents, clearances and licenses are obtained in respect of copyright and any other rights in all performances, music and all other constituent elements of the Advertising (as defined in Schedule 1);
(d) all artists are properly contracted for appearances, repeats and/or buy-outs.
4. Agency Acts as Principal
The Agency acts as a principal at law and not as the agent of the Client in all its dealings with third party suppliers and shall be directly responsible to such parties for payment of their fees/invoices.
5. Agency Remuneration
The Client agrees to remunerate the Agency for the Services in accordance with Schedule 2.
6. Approvals and Authority
6.1 The Client will nominate a named individual to whom all requests for approval should be sent. All production costs and research or creative work, if any, not covered by the remuneration as set out in Schedule 2 shall be estimated in advance.
6.2 The Client's written approval of copy, layouts or artwork will be the Agency's authority to buy production materials and prepare proofs. The Client's written approval of television, cinema and radio scripts and/or storyboards will be the Agency's authority to enter into production agreements and to engage performers.
7. Payment of Invoices
7.1 Subject to clause 7.2, all invoices rendered by the Agency to the Client under this agreement shall be paid without set off 30 days from the invoice date.
7.2 Invoices for television work may need to be paid by the Client immediately. The Agency will inform the Client of this in advance.
8. Intellectual Property/Copyright
8.1 All intellectual property rights in all product of the Services including the Advertising shall remain the property of the Agency and/or its licensors.
8.2 On termination of this agreement and subject to payment of all monies due to the Agency under it, the Agency shall, in consideration of the payment of £1.00, assign absolutely to the Client all intellectual property rights in all Advertising, to the extent that such intellectual property rights are vested in the Agency.
8.3 The Client shall provide the Agency with copies of all trade marks and branding which are to be included in the Advertising and the Client hereby grants the Agency a royalty free licence to use, copy and reproduce such trade marks and branding for the purpose of developing the Advertising.
8.4 The Agency will use all reasonable endeavours to obtain all copyright and a waiver of moral rights in respect of work sub-contracted to or acquired from third parties but it cannot undertake that in all cases it will be able to do so. In the event that the Agency is unable to obtain copyright or a waiver of moral rights in respect of such work the Agency shall inform the Client before any appropriate agreement is entered into.
8.5 The Client agrees that on termination of this agreement the Agency shall be entitled to use the Advertising solely for its own internal and external promotional purposes.
9. Warranties and Indemnities
9.1 The Agency acknowledges that it owes the Company a duty to use all reasonable endeavours to ensure:
(i) that its work does not infringe the copyright, registered trademarks, registered designs, design rights, patents or any other rights of any third party and is not in any other way contrary to law; and
(ii) compliance with relevant codes.
9.2 The Agency may, at any time it is concerned about the possibility of a claim arising from the content of the work produced under this Agreement, at its option and expense replace or modify such work with a view to avoiding such a claim. For the avoidance of doubt, the Agency shall have no liability to the Client under any provision of this clause if any claim or action is based upon any modification to the work produced under this Agreement which is not authorised by the Agency.
9.3 The Client warrants that it owns all intellectual property rights in the trade marks and branding provided by the Client necessary for their inclusion in the Advertising.
10. Legal Liability
10.1 Nothing in this agreement shall exclude or any way limit either party's liability for death or personal injury caused by its negligence. Subject to this, neither party shall be liable to the other for any loss of contracts or loss of actual or anticipated income or profit or for any indirect, special or consequential damages, loss or expenses arising under this agreement whether or not such loss or damage is foreseeable, foreseen or known.
10.2 Each party's aggregate liability to the other in contract, tort, (including negligence) or otherwise in relation to this agreement is limited to whichever is the lesser of £1,000,000 and the total charges payable to the Agency by the Client under this agreement.
The Client and the Agency agree to:
(a) inform each other immediately if any claim, statement or representation in any copy to be published is, or is likely to be defamatory, in breach of copyright, in breach of the terms of any Act or provision of law, or is in any other way unlawful;
(b) inform each other without delay if it considers any claim or trade description in any copy is false or misleading in relation to the product or service to be advertised.
The Agency will maintain appropriate insurance in accordance with industry practice.
13.1 Either party has the right to terminate the agreement immediately if the other:
(a) has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other party has failed to remedy the breach within 14 days after a written notice to do so; or
(b) becomes insolvent or is the subject of a bankruptcy order.
13.2 Either party may terminate this agreement for any other reason on giving not less than 6 months' notice in writing to the other party, to expire no earlier than the first anniversary of the date on which this agreement is signed.
14.1 The parties agree to keep all confidential information in relation to the business of the other confidential during and after the term of the agreement. This clause 14.1 will not apply to:
(a) any information which has been published other than through a breach of this agreement;
(b) information in the possession of the recipient party before the disclosure under this agreement took place;
(c) information obtained from a third party who is free to disclose it;
(d) information which a party is required by law to disclose.
15.1 The agreement made between the parties (which consists of this agreement and the Schedules), contains the total understanding of the parties and supersedes all previous understandings between them either in writing or oral, provided that this shall not apply to fraudulent or negligent misrepresentation.
15.2 If, due to war, strike, lockout, accident, fire blockage, natural catastrophe or other obstacles over which it has not control, any party fails to comply with any obligation to the other party in the manner and time required, it shall not be held responsible for any loss or damage which may be incurred by the other party as a result of such failure.
15.3 This agreement can only be amended or modified by written agreement signed by both parties.
15.4 Neither of the parties to this agreement may assign their rights or benefits under this agreement without prior written consent from the other party.
16. Governing Law
This agreement and the rights of the parties under it shall be governed by and construed in accordance with English Law. The parties agree to submit to the non exclusive jurisdiction of the courts of England and Wales.
Signed by )
for and on behalf of )
[insert name of marketing agency] )
in the presence of )
Signed by )
for an on behalf of )
[insert name of advertiser] )
in the presence of )
The Services shall consist of general communication consultancy services in respect of the Client's overall strategy for promoting and selling the Products and shall also consist of the following:-
(a) investigating and studying the Products, their offering and their market and providing such advice, assistance and co-operation as may be needed to plan UK [non digital] advertising campaigns("the Advertising");
(b) checking invoices for goods and services procured by the Agency on behalf of the Client for the Advertising;
(c) developing advertising concepts, visuals and copy;
(d) preparing creative work, drawings, layouts, designs, copy, scripts and storyboards as appropriate in connection with the Advertising;
(e) contracting and supervising the production of all Advertising, making recordings and procuring artists, and other persons required in connection with the Advertising;
(f) working with the Client's appointed media buying and planning, PR and digital advertising consultants;
(g) obtaining appropriate permissions from copyright holders, artists, musicians and other third parties having contractual or intellectual property rights in the Advertising;
(h) subject to agreement between the parties, planning, commissioning and supervising market and copy research, analysing and recommending on research findings, as required;
(i) providing advice both internally, within the Client's business, and externally, as necessary in relation to the launch and support of the Advertising.
Fees and Expenses
Fees for Advertising Services
An annual fee of [ ] payable in 12 monthly instalments of [ ], to be invoiced by the Agency monthly in advance.
The Client hereby agrees to reimburse the Agency in respect of all reasonable travel, subsistence and courier expenses incurred by the Agency in performing the Services, and in respect of any other reasonably incidental expenses, provided they are approved in advance by the Client.
Costs of production, etc.
The Client shall pay all reasonable legal fees related to the creation of the Advertising as well as production, licensing and clearance for use and shall pay all other third party costs (including licensing and performer fees) associated with producing the Advertising provided they are approved in advance by the Client.
All the above sums are exclusive of VAT, which the Client shall pay in addition.