This Advertising Agency Agreement is intended to be used by companies or individuals located in New Mexico to retain the services of an advertising agency. It sets forth the terms and conditions of the agreement including the services to be provided by the agency, the compensation arrangement and a confidentiality agreement. This document in its draft form contains numerous of the standard clauses commonly used in these types of agreements, as well as optional language to allow for customization to ensure the specific terms of the parties� agreement are addressed.
Docstoc Legal Agreements This Advertising Agency Agreement is intended to be used by companies or individuals located in New Mexico to retain the services of an advertising agency. It sets forth the terms and conditions of the agreement including the services to be provided by the agency, the compensation arrangement and a confidentiality agreement. This document in its draft form contains numerous of the standard clauses commonly used in these types of agreements, as well as optional language to allow for customization to ensure the specific terms of the parties� agreement are addressed. ® DISCLAIMERS: ALL INFORMATION AND FORMS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING AS TO THEIR LEGAL EFFECT AND COMPLETENESS. They are for general guidance and should be modified by you o r your attorney to meet your specific needs and the laws of your state. Use at your own risk. 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All Rights Reserved ADVERTISING AGENCY AGREEMENT THIS ADVERTISING AGENCY AGREEMENT ("Agreement") is made and effective this _____ [Month] ___ [Date], 20__ [Year], by and between __________________________ [Instruction: Insert the name of company employing services of Agency], with headquarters located at __________________________________ [Instruction: Insert the address of company] (hereinafter referred to as "Company") and __________________ [Instruction: Insert the name of Agency] with a place of business at ________________________________ [Instruction: Insert the address of Agency] (hereinafter referred to as "Agency"). WHEREAS, Company is interested in retaining the services of an agency for advertising and promotional activities for certain goods and/or services offered by Company; WHEREAS, Agency is in the business of providing advertising and promotional services; and WHEREAS, Agency has represented to Company that it possesses all requisite skills, knowledge, experience and technical capabilities to perform these services for Company; NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained, the parties hereto agree as follows: 1. Engagement. Company engages Agency to render, and Agency agrees to render to Company, certain services in connection with Company's planning, preparing and placing of advertising for certain of Company's products as follows: a. Analyzing present and potential marketing and advertising opportunities. b. Analyzing and reviewing market research to provide Company with timely counsel and a verbal and/or written (as requested) point-of-view on implications and recommended actions. c. Create, prepare and submit to Company, for its prior approval, advertising ideas and programs. d. Prepare and submit to Company, for its prior approval, estimates of costs and expenses associated with proposed advertising ideas and programs. e. Providing monthly and quarterly reporting to Company on all work performed in hours spent on Company business in a mutually agreed upon format. Monthly reports will include: monthly hours by project and by employee, with year-to-date totals and variances from estimated hours. f. Design and prepare, or arrange for the design and preparation of, advertisements. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 g. Perform such other services as Company may request from time to time, such as, but not limited to, direct mail advertising preparation, speech writing, publicity and public relations work, and market research and analysis. h. Coordinating and cooperating as necessary with other agencies or vendors retained by Company for the Product or Service. i. Attending strategy and other meetings and performing research as requested by Company. j. Proof of accuracy and completeness of insertions, displays, broadcasts, or other forms of advertisements. k. Rendering all services necessary for the proper and efficient use of all media in accordance with industry standards. 2. Products and/or Services. [Instruction: Choose any one clause below] Agency's engagement shall relate to the advertising and promotion of products and services of Company (“Services”) as specified in Exhibit A attached hereto. [Instruction: Please list the products and services to be advertised by the Agency under Exhibit A attached at the end of this document.] Or Agency shall be available and shall provide to Company professional advertising services for certain products and/or services of Company ("Services") as needed and requested by Company. 3. Exclusivity. Agency shall be the non-exclusive advertising agency in the United States for Company with respect to the products and/or services described under Section 2 above. 4. Compensation and Payment. a. Company agrees to pay the advertising fees set forth on the fee schedule attached hereto as Exhibit B. b. No percentage will be added to Agency charges for packing, shipping, express, postage, telephone, telex, fax, travel expenses or other out of pocket expenses of Agency personnel; and c. For any special project or other services provided by Agency pursuant to this Agreement upon which the parties have not agreed as to charges, Company shall pay Agency at its regular hourly rate, not to exceed _______ ($___) [◊ twenty ($20)] per hour. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 d. Company 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 Company in advance. 5. Confidential Disclosure. a. Agency agrees that any information (oral, written or computerized), report, instrument, document or paper generated or developed for Company or provided to Agency by or on behalf of Company, including the terms of this Agreement, shall be considered a trade secret, and proprietary and confidential information of the Company (the "Confidential Information"). b. Agency agrees i. to use the Confidential Information only in connection with its performance of this Agreement; ii. to disclose the Confidential Information only to those employees who need to know such Confidential Information because they are assisting in the performance of the services hereunder; and iii. not to disclose Confidential Information to any third party without the prior written consent of Company, and prior to such approved disclosure shall require such third parties to execute a confidentiality agreement protecting Confidential Information in a form approved by Company. c. Any contract or other agreement that Agency enters into with any third party for the purpose of implementing this Agreement (hereinafter "Agency Contract") will be solely between Agency and such other third party. Agency has no authority to bind Company with such contractual relationships. d. All information, inventions, discoveries, patent rights, trademarks and copyrights which result from any services performed by Agency pursuant to this Agreement ("Inventions"), will be the exclusive property of Company. Agency shall promptly disclose in writing to Company each such Invention and provide to Company all information known to Agency reasonably relating to such Invention. Agency agrees to sign all necessary documents or take such other actions as Company may reasonably request in order to perfect and enforce any and all of its rights in such Inventions. In particular, Agency shall assign to Company all of Agency's right, title and interest in and to each such Invention. All costs and expenses for perfecting and enforcing its rights in such Inventions shall be borne by Company. e. Agency represents and warrants that performance of the services required under this Agreement does not violate any Federal or State law. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 6. Billing. a. Agency shall invoice Company for all media costs, where possible, in advance of Agency's payment date to allow for prepayment by Company so that Company 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 Company are net of all agency commissions and discounts. b. All cash discounts on Agency's purchases including, but not limited to, media, art, printing and mechanical work, shall be available to Company, provided that Company meets Agency's requisite billing terms and there is no outstanding indebtedness of Company to Agency at the time of the payment to the supplier. c. Rate or billing adjustments shall be credited or charged to Company on the next following regular invoice date or as soon as otherwise practical. d. Invoices shall be submitted in an itemized format and shall be paid by Company within _________ (___) [◊ thirty (30)] days of the invoice date. 7. Independent Contractor. Agency understands and agrees that, for purposes of this Agreement, Agency and any employee(s) or other individual(s) designated by Agency to perform services under this Agreement ("staff members") are acting in the capacity of independent contractors. Agency is responsible for staffing the project and providing any and all compensation and/or benefits to its staff members. Company is not responsible for withholding, and shall not withhold, taxes of any kind from any payments it owes to Agency unless required by law. Agency agrees to comply with all laws related to withholding and payment of payroll taxes related to individuals providing services hereunder. Neither Agency nor any of its staff members has authority to represent or act on behalf of Company without Company's prior written consent. Further, as independent contractors, neither Agency nor any of its staff members is eligible to participate in, nor are they eligible for coverage under, any of Company's benefit plans, programs, employment policies or procedures or workers' compensation insurance. In consideration of Company agreeing to use Agency's services hereunder, Company will be released from any liability arising from Company's failure to provide such plans, programs, policies, procedures and workers' compensation insurance. Agency shall defend and indemnify Company for any and all claims, losses, injuries or damages that may be asserted against Company as an alleged employer with respect to any Agency employee or third-party vendor employee providing services in connection with this Agreement. 8. Competitors. (Optional) [Comment: Use this clause if you wish and agency agrees not to accept jobs from your 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 Company with respect to which Agency is providing any service pursuant to this Agreement. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 9. Indemnification and Insurance. a. Agency shall indemnify and hold Company harmless with respect to any claims, loss, suit, liability or judgment suffered by Company, 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 Company 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 _______ ($___) [Instructions: Insert the Insurance Policy Amount], naming Company as an additional insured and loss payee under such policy or policies. b. Company agrees to indemnify and hold Agency harmless with respect to any claim, 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 Company or where material created by Agency or at the direction of Agency subject to the indemnification in subsection a above is materially changed by Company. Information or data obtained by Agency from Company to substantiate claims made in advertising shall be deemed to be "material furnished by Company to Agency". c. In the event of any proceeding, litigation or suit against Company 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 Company and Company's attorneys. 10. Term. This agreement shall be for a _________ (___) [◊ Four (4)] month/year period, commencing from the date of this agreement. Either party can cancel said agreement upon _________ (___) [◊ Sixty (60)] days written notice in the manner described under section 13 and 14 of this Agreement. 11. Rights upon Termination. Upon termination of the Agreement, Agency shall transfer, assign and make available to Company all property and materials in Agency's possession or subject to Agency's control that are the property of Company, subject to payment in full of amounts due pursuant to this Agreement. 12. Default. In the event of any default of any material obligation by or owed by a party pursuant to this Agreement, 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. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 13. 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 Company: ___________________________________ ___________________________________ ___________________________________ If to Agency: ___________________________________ ___________________________________ ___________________________________ [Instructions: Insert address of both parties for serving notice] 14. Electronic Notice. (Optional) [Comment: Keep this clause if you would like to accept notice through emails] Both the parties hereby agree to send and accept notices mentioned under section 13 through electronic emails. Below are email addresses provided by both parties for the purpose of sending and receiving notices: Company email: ____________________________ Agency email: ____________________________ 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. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 This Agreement shall be construed and enforced in accordance with the laws of the state of ____________ [Instruction: Insert the State in which Company is registered or operates its business]. IN WITNESS WHEREOF, the parties hereto have executed this Advertising Agency Agreement as of the date first above written. For: COMPANY For: AGENCY Signed:_________________________________ Signed:_______________________________ Name: Name: Title: Title: Date: Date: © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8 EXHIBIT A Products and Services of the Company to be advertised [Instructions: Kindly refer to section 2.] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 EXHIBIT B Compensation and Payment [Instructions: Kindly refer to section 4.] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10
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