An advertising agreement is a legal contract executed between a company hosting the advertising and a company providing the advertising.
Advertising agreements will vary depending on the companies and the ad medium, but most advertising contracts will include the following key information:
- Names and contact information of both businesses
- Rate for advertising -Duration the ad will run
- Assignment of third parties
- How the ad will be placed or appear
- Payment Terms
- Any restrictions that may affect advertising
Draft of an Advertising Agreement
This Advertising Agreement (the “Agreement), is made and entered into on…………………..(the “Effective Date”) by and between:
1)………………., a company incorporated under the Companies Act, 2013 with PAN………………………..and its registered office located at……………..(hereinafter called as the “Company”); and
2)……………., company incorporated under the Companies Act, 2013 with PAN………………………………and its registered office located at………………(hereinafter called at the “Agency”.
The Company and the Agency are hereinafter individually referred to as a “Party” and collectively as the “Parties”.
WHEREAS, the Company own several…………brands and owns, manages, and maintains sport outlets all over the world;
AND WHEREAS , the Agency is engaged in the business of advertising and marketing services( the “Services”);
AND WHEREAS the Company has approached the Agency to assist Company in the advertising and marketing of its sports brands by providing specified services upon the terms and conditions set forth herein;
AND WHEREAS the Parties are desirous of recording their understanding in writing.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for good and valuable consideration, the Parties agree as follows:
1.1 The agency has represented that it has the experience, ability and resources to provide the comprehensive Services as per the terms and conditions of the Agreement.
1.2 The Agency shall provide the Company with services subject to the compensation paid by the Company as agreed by the Parties.
2 Engagement and Authorization to Use Third Parties:
2.1 The Agency is retained and appointed by the Company to provide Services as described in the Agreement on a non-exclusive basis.
2.2. Nothing in this Agreement shall restrict the Company from engaging any other agency for advertising and marketing services.
2.3 In order to perform the Services, the Agency is authorized to enter into third party contract to carry the purposes of this Agreement provided the prior written approval of the Company is out sought to approve the engagement of such third-party contractors.
2.4 The Agency shall be fully liable and responsible to the acts and omission of all third-party contractors employed by the Agency.
3. Use of Intellectual Property Rights:
3.1 The Company authorizes the Agency to use the Company’s intellectual property rights (“IP Rights”) solely for the transactions contemplated under the agreement.
3.2 Except as permitted in the Agreement, the Agency shall have not right to use any of the Company IP Rights without the prior written approval of the Company.
3.3 The Agency shall be fully responsible for loss or damage suffered by the Company for unauthorized use of the Company IP Rights.
4. Ownership of Intellectual Property:
4.1 All advertising and marketing content provided by the Company and any other connected materials submitted (“content”) , created , developed or supplied by the Company shall be and remain Company’s sole and exclusive property and shall be dealt with by the Agency as such.
4.2 The Agency expressly acknowledges and agrees that it will not own and posses any proprietary right in the Content except the utility rights expressly granted under the Agreement.
5. Terms and Conditions: The Agency expressly agrees to undertake that:
5.1 The Agency shall prepare advertising and marketing plain (“ Plan”) and will implement the Plan to promote the brand of the Company subject to the Company’s written approval.
5.2 The Agency shall perform all the Services subject to the terms and conditions of the approved plan.
5.3 It shall be responsibility of the Agency to promote the Company brands across all social media platforms using the technology and strategies decided by the Parties.
5.4 The Agency shall not target or solicit the loyal customers of the Company using its association with the Company to solicit business for itself.
6.1 The Agency shall keep, maintain and preserve at its principal place of business for at least two (2) years following termination or expiration of the term of this Agreement or any renewal(s) hereof, complete and accurate records of accounts related to Services rendered under the Agreement.
6.2 The Company shall have the authority to inspect and audit the records related to the Services rendered under the Agreement.
6.3 Such records and accounts shall be available for inspection and audit at any time or times during or after the term of this Agreement or any renewal(s) hereof at the sole request of the Company.
6.4 The Company shall conduct such inspection or audit during reasonable hours upon serving the notice to the Agency.
6.5 The Agency agrees to cooperate with the Company in the performance of its duties of inspection and audit.
6.6 During the audit, if the Company identifies any discrepancy in the records and accounts of the Agency, shall be paid as penalty by the Agency for such discrepancy.
7.Representations and Warranties: The Agency represents and warrants that:
7.1 The services rendered will conform to stated specifications, will comply with descriptions in the Agency’s sales materials and brochures, will match Agency’s samples, will conform to all applicable codes and standards, and will fulfill all prior representations made by the Agency.
7.2 It has obtained appropriate releases granting the Company complete and unrestricted rights (unless otherwise specified in writing and attached to this Agreement) to use the services provided.
7.3 It is a company that has been duly incorporated as organized and is validly existing and in good standing.
7.4 It is properly qualified where qualification is necessary for the conduct of its business under the Agreement (e.g., necessary approvals and licenses to operate the advertising husiness).
7.5 It has adequate corporate and other power to enter into and perform the Agreement.
7.6 The Agreement has been duly executed and delivered by the Agency and is intended to be a valid and binding obligation of the Agency, enforceable against it in accordance with its terms.
8.Term and Termination:
8.1 This Agreement will become effective on the execution (“Effective Date”) and shall remain in full force and effect for a period of 3 (three) years following the effective date.
8.2 This Agreement may be terminated by the Company upon providing 30( thirty) days’ prior written notice to the Agency provided the Agency commits a material breach of the Agreement and fails to cure the breach within the cure period as agreed by Parties.
8.3 The Company may terminate the Agreement for its own convenience with or without reason by providing prior notice of 15 (fifteen) days to the Agency.
8.4 The termination or expiry of the Agreement in any of the circumstances aforesaid shall not in any way affect or prejudice any right accrued to the Company against the Agency, prior to such termination.
8.5 The Company shall not any incur liability for any kind of loss or damage suffered by the Agency as a consequence of the legitimate termination of the Agreement either by the Company and the Agency
8.6 The provisions of the Agreement which , by their terms, require performance after the termination or expiration of the Agreement, or have application to events that may occur after the termination or expiration of the Agreement, will survive the Agreement after termination and expiration.
The Agency (the “Indemnifying Party”) will defend, indemnify and hold harmless the Company, its parents, divisions, subsidiaries and affiliates, and their officers, directors, employees, agents, successor and assign (collectively, “Indemnified Parties” andeach of the foregoing being hereinafter referred to individually as “Indemnified Party”), from and against, all liability to third parties and promptly reimburse them for all costs and expenses (including, without limitation, all settlements, judgements , fines, damages, reasonable legal fees, court costs, expert fees, etc.) by reason of any claim, demand, tax, penalty or judicial or administrative proceeding or investigation arising from or in connection with:
9.1 Any breach of any representation or warranty contained in the Agreement by the Agency;
9.2 The negligent or willful acts or omissions of the Agency resulting in any bodily injury or death to any person or loss, disappearance, or damage to tangible or intangible property; and
9.3 The Agency’s infringement, misuse, or misappropriation of any third party intellectual property rights; and
9.4 The Agency’s failure to comply with applicable law, rules and regulations.
10.Limitation of Liability:
10.1 In no event shall the Company’s liability for any claim arising out of or in connection with the Agreement exceed………………
10.2 The Company will not be liable to the Agency for any consequential, special, exemplary, or punitive damages (including damages for loss of data, revenue, and/or profits), whether foreseeable or unforeseeable, arising out of the Agreement regardless of whether the liability is based on breach of contract, tor, strict liability, breach of warranties or otherwise, and even if the Party has been advised of the possibility of those damages.
11.1 The Company shall disclose certain non-public information to the Agency under the Agreement that is marked as confidential or disclosed under the circumstances reasonably indicating its confidentiality ( the “Confidential Information”).
11.2 The foregoing confidentiality obligations will not apply to Confidential Information that
(i) is already known to the Agency prior to disclosure by the Company.
(ii) is or becomes a matter of public knowledge through no fault of the Agency.
(iii) is rightfully received by the Agency from a third party not known by the Agency to be bound by a duty of confidentiality to the Company with respect to such information; and
(iv) is independently developed by the Agency without using the Confidential Information.
11.3 The Agency shall not disclose Confidential Information to any third party or use the Confidential Information in violation of the Agreement for its own or certain third-party benefit.
11.4 The Agency may disclose the Confidential Information to its own employees only for exercising its rights and obligations under the Agreement provided such employees agreed to abide by the terms and conditions of Agreement.
11.5 The Agency shall be fully responsible and liable for acts and omissions of its employees.
11.6 The Agency shall treat the Confidential Information with at least the same degree of care and protection as it will use with respect to its own confidential information of a similar nature, but in no event less than a reasonable standard of care.
11.7 The Agency shall hold in strictest confidence all the Confidential Information disclosed by the Company and use such Confidential Information for purposes authorized under the Agreement.
11.8 If the Agency believes that it will be compelled by a court, or other authority to disclose Confidential Information , it shall
(i) give the Company timely written notice so that the Company may take steps to oppose such disclosure; and
(ii) cooperate with the Company in its attempts to oppose such disclosure, provided that such opposition is reasonable in light of applicable law or regulation.
12.1 The Company will be invoiced on the first day of every month during the contract period. Payment shall be made to the Agency with 15 (fifteen) days from the receipt of invoice.
12.2 The Company will notify the Agency in writing of any dispute it has with any particular invoice within fifteen (15) days after its receipt of such invoice. The Parties shall work together in good faith to resolve any such disputed fees.
12.3 If the Parties are unable to resolve the disputed charge within thirty(30) days of Agency receipt of the disputed notice, the Parties shall be entitled to pursue remedies available hereunder.
12.4 The Company shall have the authority to set-off, deduct or otherwise withhold any payments due to the Agency under the Agreement as a compensation to the payment owned by the Agency to the Company.
13.1 Injunctive Relief: The Agency acknowledges that failure to comply with the requirements of the Agreement will result in irreparable injury to the Company for which no adequate remedy at law or equity may available, and the Agency consent to the issuance of , and agree to pay all court costs and reasonable attorney’s fees incurred by the Company in obtaining, without the posting of any bond, an exparte or other order for injunctive or other legal or equitable relief.
13.2.1 This Agreement may not be assigned in whole or in party by the Agency without the prior written consent of the Company. Any such assignment in violation of the Agreement shall be null and void.
13.2.2 The Company shall assign the Agreement to its affiliate or successor in interest or any third party of its option.
13.3. Force Majeure:
In case of any failure or delay of either Party in the performance of its obligations hereunder due to riot, insurrection, fire, flood, storm, explosion, act of God, government action, earthquake, pandemic , epidemic, shortage of materials or any other event that is unforeseeable, unavoidable and beyond the reasonable control of such Party, such Party shall not bear any liability for such failure or delay.
13.4.1 During the term of the Agreement and for period of one(1) year thereafter expiration or termination of the Agreement, the Agency shall not actively solicit the employment of any employee of the Company, which employee was engaged in any activity performed pursuant to the Agreement.
13.4.2 For the violation of this provision, the Agency shall have to pay a penalty equivalent to 100% of the gross annual salary of such employee.
13.5 Severability: If any provision of the Agreement that can be separated, is or becomes illegal, invalid or unforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not in any way affect the validity of any other provision of the Agreement.
13.6 Waiver: No failure to enforce any of its right by a Party shall not constitute waiver of such right.
13.7 Notice: Any notice required or permitted to be given is to be provided in writing to the person designated by a Party and at the address listed in the Agreement , or certified mail, return receipt requested.
13.8 Relationship between Parties: It is understood and agreed that the Agency and the Company are independent parties. Nothing contained or implied in the Agreement creates a relationship of employer-employee between the Agency and Company nor does it create a joint venture, partnership, or similar relationship between the Agency and the Company.
13.9 Governing Law and Jurisdiction:
13.9.1 This Agreement shall be governed by and construed in accordance with the law of India.
13.9.2 The Parties shall submit to the exclusive jurisdiction of court at Gurugram, Haryana.
13.10.1 In event of any dispute, difference or question arising out of or in relation to be breach of the Agreement, the same shall be governed by and settled by a sole arbitrator under the procedure of Arbitration and Conciliation Act, 1996.
13.10.2 The arbitration venue shall be at Gurugram. The decision or award so given shall be final and binding on the Parties.
13.10.3 Each Party shall bear its own costs and expenses of conducting the arbitration.
13.11 Entire Agreement:
13.11.1 The Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
13.11.2 No Amendment, supplement, modification or restatement of any provision of the Agreement shall be binding unless it is made in writing and signed by each Party.
IN WITNESS WHEREOF, the Parties have executed the Agreement by their duly authorized officers to be legally valid as of the Effective Date.