Retainer Agreement Advertising Agency
1. Parties. Agreement made between [name], a [state] corporation with principal office at [address] (Company), and [name of advertising agency], a [state] corporation with principal office at [address] (Agent).
2. Employment. Company retains and appoints Agent to carry out its advertising program, and Agent accepts such appointment, subject to the terms of this Agreement.
3. Term. Agent's appointment will begin on [date] and end on [date], unless terminated earlier pursuant to the terms of this Agreement.
4. Early Termination. Either Company or Agent may terminate this Agreement at any time on [number] days' prior written notice to the other. After receipt of such notice of termination by either party, Agent is not required to start work on any new advertising projects for Company. Agent shall, however, complete all services previously agreed upon, unless both parties agree that any or all such services shall terminate.
5. Agent's Duties. Agent will act as Company's representative for advertising services approved by Company and to be conducted on Company's behalf. Such services include:
a. Analysis of Company's advertising needs and the market for Company's products or services, and advice on an overall Company advertising program;
b. Development of specific advertising programs, at Company's request, including planning and preparation of layouts and advertising copy;
c. Selection of the advertising media deemed most effective and appropriate for Company's advertisements;
d. Negotiation and execution of contracts with advertising media representatives to carry out Company's advertising program(s);
e. Negotiation and execution of contracts for any models, endorsements, and all materials required for any advertising program;
f. Placement of advertisements at rates and on terms that are most favorable to Company;
g. Follow-up on all advertisements placed to ensure proper execution, including appearance, position, date, and time;
h. Analysis and reporting of the effectiveness of the advertising program(s), including the media employed;
i. Timely payment to all persons providing advertising services or goods with whom Agent has contracted on behalf of Company; and
j. Maintenance of complete and accurate books and records of all payments made and services performed on Company's behalf.
6. Agent's Rights. Agent may contract with third parties to carry out the services provided for in this Agreement. However, unless otherwise agreed to by Company, Agent is liable to such parties, as principal, in all such contracts. Agent may not incur any obligations on behalf of Company or provide any services without first obtaining its written consent. As a condition of such consent, Agent agrees to submit to Company detailed written proposals regarding advertising services or written estimates of the cost of proposed services and goods for which Agent wishes to contract.
a. Commissions. Agent shall be entitled to compensation equal to:
i. ......... percent (........%) of gross charges for time and space of all advertising media employed on Company's behalf; and
ii. ........ Percent (........%) of all charges for goods and services (other than as provided in Subparagraph 5(i)) provided by third parties for Company's advertising program(s).
b. Deficiency in Commissions. The advertising media selected by Agent may or may not provide commissions equal to the commissions stipulated in Subparagraph 7(a). If such media's commissions are less than the stipulated amounts, Company shall pay Agent any deficiency. If such media's commissions are greater than the stipulated amount, Company shall be credited with any excess.
8. Reimbursement of Expenses. Company will reimburse Agent for:
a. All necessary and reasonable expenses incurred for all advertising programs approved by Company (except as otherwise provided in this Agreement);
b. All reasonable travel expenses necessary to carry out the terms of this Agreement (except for travel between Company's and Agent's offices);
c. All shipping, mailing, and packaging expenses and all telephone, telex, and similar expenses incurred by Agent in carrying out the terms of this Agreement; and
d. All unavoidable costs incurred in the event Company cancels any part of any advertising program after having approved it.
9. Advances. Agent will make all payments to third parties required of Agent under this Agreement in advance of reimbursement by Company. However, such obligation shall cease if Company is in default in making any payment due to Agent and such default is outstanding.
10. Payment Procedures.
a. Billing. Agent will bill Company using standard forms and procedures recommended by the Australian Association of Advertising Agencies. If needed to take advantage of cash discounts, Agent will bill Company based on estimated charges. Agent will thereafter submit final bills, supported by paid invoices, as soon as possible.
b. Payment. Company shall pay Agent for all sums billed not later than [number] days after receipt of a bill.
c. Details Concerning Commissions. Agent's bills to Company will include a detailed recitation of media commissions actually received and due under this Agreement.
d. Books and Records. At Company's request, Company shall receive proof of any payments made by Agent in carrying out the terms of this Agreement, and have the right to examine Agent's books and records (during normal business hours).
11. Limits on Agent's Liability.
a. Third Parties' Actions. Agent is not liable to Company for any failure by a third party to perform any services or provide any goods contracted for under this Agreement.
b. Delays Caused by Company. Agent is not liable for any losses, including deadlines missed, caused by Company's delay in approving any advertising program.
12. Indemnification. Agent shall indemnify and behold Company harmless from and against all costs (including attorney fees) and claims arising from (a) contracts between Agent and third parties made under this Agreement or (b) advertising arranged under this Agreement.
13. Insurance. During the term of this Agreement, Agent shall maintain an advertiser's liability policy in form mutually satisfactory to Company and Agent and for a sum not less than ........ Dollars ($........), naming Company as loss payee. Agent shall pay the cost of such insurance.
14. Rights and Obligations on Termination.
a. Existing Contracts. As of the date this Agreement terminates, Agent will assign to Company all contracts with third parties that were made for its benefit, that are outstanding, and that are assignable. Company, in turn, will assume all such contracts and hold Agent harmless for any liability under them for any period after the date of assignment. If any existing contract is not assignable, then Agent agrees to continue to perform Agent's obligations with respect to such contract(s) after the date of termination, and this Agreement shall remain in force solely with respect to such contracts.
b. Bills. Agent shall bill Company for all sums due under this Agreement and not previously billed within [number] days of the date of termination of this Agreement, as defined in Paragraph 3 or 4. Company is, subject to Paragraph 4, liable to Agent for commissions and expenses in connection with advertisements approved and placed prior to receipt of notice of termination. Thereafter, Company has no such liability to Agent except as provided in this Agreement or as to which it may otherwise agree.
c. Disposition of Materials. All plans, sketches, copy, and other materials produced for Company's advertising activities under this Agreement shall be delivered to Company on the termination date of this Agreement (pursuant to Paragraph 3 or 4, or such later termination of obligations provided in this Paragraph 14, as applicable).
Prior to termination, Agent may, however, dispose of materials prepared under this Agreement but no longer useful in carrying out Company's advertising program(s). Prior to disposition, Agent shall notify Company of Agent's intended action and describe the materials affected. Thereafter, Company may within [number] days of receipt of such notice request that the materials be delivered to Company. If Company fails to request delivery, Agent may thereafter dispose of such materials. If Company requests delivery, Agent is required to deliver promptly such materials to Company.
15. Arbitration. All disputes arising out of this Agreement are to be submitted to arbitration, in [shire, state], pursuant to the rules then existing of the American Arbitration Association.
16. Relationship of the Parties. Agent is an independent contractor performing services for Company and is not a regular employee of Company for any purpose.
17. Assignment. Neither Agent nor Company may assign its rights or delegate its duties under this Agreement.
18. Notices. All notices under this Agreement shall be in writing and sent by first-class mail, postage prepaid, to the address contained in Paragraph 1. Either party may, from time to time, change such address by prior written notice to the other.
19. Entire Agreement and Modification. This Instrument contains the entire agreement of Company and Agent. Oral changes to it will have no effect. It may be altered only by a later written agreement signed by the party against whom enforcement of such alteration is sought.
[name of Company]
[name of Agent]