DATED THIS DAY OF , 20
DEED OF ASSIGNMENT
ADVOCATES & SOLICITOR,
AGREEMENT BETWEEN ADVERTISER AND ADVERTISING AGENCY
THIS DEED is made the day of
(Company No. ), a company incorporated in Malaysia and having its registered office at ___________________________ (“company”)
(Company No. ), a company incorporated in Malaysia and having its registered office at _______________________ (“agency”).
The company carries on business of __________________ and has requested that the agency serve the company as an advertising agency in accordance with the company’s instructions from time to time.
The agency has agreed to serve the company as an advertising agency and to prepare advertising, marketing, promotional and general publicity material on the terms and conditions of this agreement.
THE PARTIES AGREE:
Appointment and term
1. (1) The company exclusively appoints the agency to provide the services customarily provided by an advertising agency in connection with the company’s products (and/or services] specified in Schedule 1 to this agreement (“the products’), in the geographic area specified in Schedule 2 to this agreement (“the products”), in the geographic area specified in Schedule 2 to this Agreement (“the area”) and at the rates of remuneration specified in clause 3 of this Agreement.
(2) The services to be provided by the agency include without limitation:
(a) analysis of the company’s requirements for advertising, packaging, research and all product related promotion including all consultation, planning and development required for this purpose, and the preparation of recommendations;
(b) the creation, planing and supervision of production of approved material for press (including publications), radio, television, print media, outdoor signs, transport, motion pictures, slides, direct mail, point of sale and such similar materials as the company may from time to time specify, the making of recordings, engagement of artists, models and other persons used in this connection and the securing of proper legal consultation when required;
(c) the preparation of accurate minutes of all meetings and contracts between the agency and the company and preparation of cost estimates for particular items within overall agreed plans;
(d) the planning, negotiation of contracts and placing of advertising in all media and supplying of necessary material;
(e) checking the quality and position of advertising placed;
(f) the preparation of billings to the company, including auditing the validity and accuracy of invoices received from the media and other suppliers, and maintaining adequate budget controls for media and production expenditure;
(g) maintaining good business relations with all media, suppliers and specialists within the industry.
(3) This agreement shall commence on _______ and continue for a period of one (1) year and thereafter or until such time as this agreement is terminated after that time:
(a) by either party given written notice of not less than three (3) months, given so as to expire at any time on or after the one (1) year period specified above (during which period of notice all terms and conditions of this agreement shall continue to apply); or
(b) pursuant to clause 12 of this agreement.
2. The agency acts as a principal and not as an agent of the company in all its dealings with third parties and will be solely responsible for carrying out all its duties under the agreement except where and to the extent that it has obtained the prior written consent of the company.
3. (1) For those services described in clause 1(2) of this Agreement for which the agency receives a commission from the media (usually of ten percent (10%)), the agency may retain the commission from the media and in addition may charge the company a percentage service fee of seven and one-half percent (7½%) on gross media billings which relate to the company.
(2) For any and all other services for which the agency does not receive a commission from the media, the agency may charge the company on the following basis:
(a) for work done within the agency, shall be charged at an agreed fee or, if no fee is agreed, on the basis of time spent, at the agency’s established hourly rates applicable to the agency representatives involved;
(b) for services obtained outside the agency such as art and design work, production, packaging, sales conference materials and research, such services shall be charged at actual cost;
(c) for travel and accommodation charges, courier, telex, postage, telex, postage, telephone (other than local calls) and other out-of-pocket expenses incurred directly for the company’s purpose such charges and expenses shall be charged at actual cost.
Terms of payment
4. (1) The agency may invoice the company on the ______ day of each month and the company shall pay all invoices submitted by the agency within ___ days from the end of the month in which the invoice was submitted.
(2) In all cases, the agency mush invoice the company in a timely manner so as to enable the company to provide the agency with funds in sufficient time for the agency to obtain any cash discounts provided by media and trade suppliers.
(3) The agency shall duly credit to the company any discounts and/or credits for any and all special arrangements obtained by the agency in connection with the performance of its duties hereunder including without limitation lower media rates.
5. (1) The agency undertakes as follows:-
(a) to carry out the general duties of an advertising agency (including without limitation the services set out in clause 1(2) of this agreement);
(b) not to act during the continuance of this agreement in the capacity of advertising agent for any person, firm or company carrying on any business which competes or may or is likely to compete with [that part of] the company’s business [concerned with the manufacture, distribution and sale of _______ and related products] without having first obtained the company’s prior written consent;
(c) to observe the rules, recommendations and guidelines of the Media Council of Australia, the Federation of Australian Commercial Television Stations, the Federation of Australian Radio Broadcasters, the Trade Practices Commission, the Australian Broadcasting Tribunal and The Australian Broadcasting Control Board and the codes of conduct laid down by those bodies or any other accepted standard of advertising that may be appropriate and will ensure that all services provided under this agreement conform with those bodies and that all advertising placed by it is legal, decent, honest and truthful;
(d) to obtain the approval of the company’s solicitors (whose name and address will be supplied on request) to any advertising prepared by the agency and in the case of any television commercial the approval of the Federation of Australian Commercial Television Stations (or any statutory or other body which may hereafter be set up in substitution thereof);
(e) to obtain all necessary consents, licences or authorisations under all Acts of Parliament of the Commonwealth of Australia and all Acts of Parliament of the State or Ordinances of the Territory in which the services are provided under this agreement and under all ordinances, regulations, by-laws, orders and proclamations made or issued under any such Act or Ordinance and will ensure that all services provided under this agreement conform therewith;
(f) to obtain all necessary consents, licences or authorisations from all and any third party who has the capacity to give the same in relation to any photograph, drawing or other representation of a living individual or any facsimile signature or any photograph, drawing or other representation of any animal or any inanimate object or for the engagement of any person as artist, model, actor (“collectively referred to as the artist”) or otherwise used for the purposes of providing the services under this agreement, the artist to execute an agreement in a form approved by the company’s solicitors;
(g) to ensure that any third party who is identified by name as endorsing the company’s products (or services) (“the endorser”) executes an agreement in a form approved by the company’s solicitors verifying the contents of or material contained in any and all advertisements made by the endorser and that the endorser consents to any abridgement, alteration or addition to the content or material contained in any and all advertisements made by the endorser and where the endorser is represented as having particular qualifications or credentials that the representation is true in every respect;
(h) to the best of its knowledge and ability to guard against any loss the company may incur through failure of media or suppliers to properly execute their commitments provided that the agency shall not be responsible for any such failure by media or suppliers;
(i) to the best of its knowledge and ability to guard against any loss the company may incur through loss, damage or destruction other than reasonable deterioration to any negatives, video tapes, photographs or other materials in the possession of suppliers or other third parties and used or to be used for the purpose of providing the agency’s services hereunder provided that the agency shall not be responsible for any such loss, damage or destruction to any negatives, video tapes, photographs or other materials in the possession of suppliers or other third parties;
(j) to indemnify the company against any loss the company may incur through loss, damage or destruction other than reasonable deterioration to any negatives, video tapes, photographs or other materials in the possession of the agency and used or to be used for the purpose of providing its services under the agreement;
(k) to procure the delivery to the company of all negatives, video tapes, photographs or other materials in the possession of the agency or suppliers or other third parties and used or to be used for the purpose of providing its services under the agreement as and when the company may request such delivery including without limitation any such material in which the agency may have any right or interest;
(l) not to undertake any campaign, prepare any advertising material or publicity or cause publication of any advertisement or article which would be false, misleading, deceptive, indecent, libellous defamatory, unlawful or otherwise prejudicial to the company’s interest;
(m) to adhere to and comply with the company’s trade mark and /or copyright standards and policies which are in effect from time to time.
(2) Before entering into any binding obligation with any third party the agency must submit to the company for written approval full details of all advertising which it proposes to place on the company’s behalf and of the cost thereof, together with full written details of the dates, times, duration and nature of all media bookings which it proposes to make on the company’s behalf with particular reference in the case of television commercial to the exact times of day at which such commercials are to appear. No alterations shall be made in the rates or terms approved by the company without the company’s prior written consent.
6. (1) Without limiting the generality of clause 5(2) of this agreement, the agency mush indemnify and hold the company harmless from and against any and all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, cost (including without limitation settlement costs) or expenses (including without limitation legal fees) arising from:
(a) any breach by the agency of any of the undertakings, terms or conditions of this agreement;
(b) any alleged:
(i) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(ii) infringement of trade mark, copyright, title, slogen, trade indicia or other proprietary rights;
(iii) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation; or
(iv) invasion of the right of privacy, which is in any way connected with any advertising or other materials covered by this agreement, in connection with advertising or other materials covered by this agreement;
(c) the preparation or presentation of any advertising or other materials covered by this agreement.
(2) Notwithstanding clause 6(1), the company agrees to indemnify and hold the agency harmless from and against any and all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including without limitation settlement costs) or associated expenses (including without limitation legal fees) directly arising from any information or material supplied by the company or from the use or consumption of the company'’ products or form any act or thing done on the company’s specific instruction or with the company’s specific approval.
(3) The indemnities contemplated by clause 5 and 6 of this agreement shall survive the termination or expiration of this agreement.
(4) The agency shall not engage any third party to produce or assist in the third party has executed an agreement in writing with the agency which contains terms similar in effect to those contained in sub-clause 5(1)(b), 5(1)(c), 5(1)(d), 5(1)(e), 5(1)(f), 5(1)(g), 5(1)(m) and clause 9, 10 and 11 of this agreement.
Approvals and authority
7. (1) Approvals – after obtaining the company’s general approval of a campaign, the agency shall submit to it for specific approval:
(a) copy, layouts, artwork, storyboards and/or scripts;
(b) media schedules for time, space and other facilities in accordance with sub-clause 5(2) of this agreement;
(c) informed and accurate estimates of the cost of the various items of the advertising.
(a) the company’s approval of copy and layouts authorizes the agency’s authority to purchase production materials and prepare proofs and the company’s approval of proofs authorizes the agency to publish;
(b) the company’s approval of television, cinema and radio scripts and/or storyboards with estimated costs authorizes the agency to make production contracts and engage artists and/or endorsers and the company’s approval of films and recordings authorizes the agency to transmit;
(c) the company’s approval of schedules and estimates authorises the agency’s authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by media or suppliers.
8. (1) The company may request the agency to change, reject, cancel or stop any and all plans, schedules or work-in-progress and the agency shall take all steps to comply PROVIDED THAT it can do so within its contractual obligations to media, supplies o other third parties.
(2) In the event of any cancellation or amendment the company shall reimburse the agency for any charges or expenses to which it is committed and also to pay the fees covering these items.
Copyright and other rights
9. (1) The copyright for all purposes in any and all literary, dramatic, musical or artistic work or in any cinematographic film or sound recording or in any television or sound broadcast including without limitation artwork, copy, storyboard, film and radio commercials any and all other work capable of being the subject of copyright produced or created by the agency for the company (‘the copyright work’) vests in the agency. In the case of copyright work commissioned by the agency and in any other case where the copyright in the copyright work is not already vested in the agency, the agency will use its best endeavours to hold and obtain all necessary rights in respect of the copyright work.
(2) If requested by the company, the agency shall use its best endeavours to assign to the company or its nominee any and all copyrights arising out of the copyright work as is vested in the agency and shall deliver, or where appropriate, procure he delivery of all original materials prepared by the agency on the company’s behalf as and when requested by the company.
(1) In consideration of the payment by the company to the agency of [RM1.00] (receipt of which is hereby acknowledged);
(a) the agency as beneficial owner assigns to the company absolutely and for the full term of the copyright therein all and any copyright in all the world in or arising out of any literary, dramatic, musical or artistic work or in any cinematographic film or sound recording or in any television or sound broadcast or any other work capable of being the subject of copyright including any work commissioned by the company or prepared for it by the agency at any time prior to the date of this agreement (the “copyright work”) which is produced by the agency on behalf of the company at any time;
(b) the agency shall take all such steps and execute all such documents s are necessary to transfer such copyright absolutely for the full term of the copyright to the company at no extra cost to the company. Where copyright in the copyright work is not already vested in the agency is shall use its best endeavours to ensure that such copyright is transferred to and becomes vested in the company;
(c) where the production of any copyright work for the company will involve making use of any copyright work already in existence (“existing work”) the agency shall, prior to commencing such production for the company, obtain the necessary licence to use the existing work together with an indemnity from the licensor against any claims or proceedings which may be issued or threatened by any third party against the agency and/or the company for infringement of copyright in respect of the agency’s use of the existing work for the purposes of providing its services under this agreement;
(d) the agency undertakes to ensure that the existing work will be available throughout the life of the advertising campaign in which the existing work is used;
(e) where musical works are used for the purpose of providing the agency’s services under this agreement the agency shall give the required notices to copyright owners and pay all royalties as they fall due;
(f) the agency undertake to obtain so far as is possible from copyright owners of existing works an undertaking in writing and for valuable consideration that the copyright owner of any such existing copyright does not make use of the same without the company’s written authority;
(g) the company shall reimburse the agency for any charges or expenses it may incur in the execution of its obligations as provided for in sub-clause 9(1)(c), 9(1)(e) and 9(1)(f);
(h) the agency hereby assigns all the future copyright in all the world in all future copyright work to the company so that the same shall, on its coming into existence, vest in the company absolutely for the full term of the copyright therein;
(i) the agency undertakes not to make use of any copyright work produced for the company whether by the agency or on its behalf or any copies thereof, other than for the purpose of providing its services under the agreement, without the prior written consent of the company.
(2) The assignments referred to in this clause 9 shall not in any way be affected by any disputes between the parties nor by the termination or expiration of this agreement for whatever reason.
Ownership of property
10. (1) Any and all advertising material and property including, without limitation ideas, designs, concepts, original compositions, artwork, finished advertisements, radio and television commercials and all trade marks, trade names, brand names, trade symbols, logos, slogans or other trade indicia purchased, prepared or developed in the performance of this agreement (“sollectively referred to as the trade indicia”) shall be the absolute property of the company and the agency shall not use such property or material in any media without the prior written consent of the company PROVIDED THAT nothing in clause 10, shall prevent the use of such property and material by the agency for the purpose of providing its services under the agreement such to and in accordance with the terms and conditions of this agreement.
(2) No right is given to use the trade indicia except in connection witht the promotion and advertising of the goods of the company in a form approved by the company without any change or modification by the agency;
(3) Clause 10(1) & 10(2) do not grant to the agency any property right or interest in the trade indicia and the agency acknowledges the validity of the company’s title in and to the trade indicia.
(4) The agency will promptly bring to the attention of the company any improper or wrongful use of any trade indicia of the company or of any other rights of the company which may come to its notice.
11. (1) The agency hereby undertakes:
(a) to treat as confidential and not to disclose, duplicate, use or permit the use at any time in any way, other than for the purpose of providing its services under the contract, and then only in such a way as shall first have received the express prior written consent of the company, and shall protect fully the confidentiality of the information of any confidential or commercially sensitive information of which it may become aware for the purpose of providing its services under this agreement or otherwise (“information”) including, without limitation, information concerning or relating to the past, present or contemplated manufacturing process, marketing strategies, internal or external business operations or other information of the company or which may either directly or indirectly be relevant to the company’s business and including also any compilations or other public information in a form not in the public domain;
(b) to limit the disclosure of the information within its own organisation to those of its officers and employees to whom such disclosure is strictly necessary for the purpose of providing its services under this agreement and to ensure that they are bound by obligations of secrecy in respect of the information equal and like to those contained in this agreement and to use its best endeavours to ensure that such officers and employees abide by such obligations of secrecy;
(c) to accept full liability and to hold the company harmless against all wrongful use, duplication or disclosure of the information contrary to this agreement and to return to the company upon termination of this agreement all documents or material of any kind containing or alluding to the information, whether directly or indirectly, together with all copies of such material, whether prepared by the agency or provided by the company which are then in its possession or under its control;
(d) not to use the name of the company in publicity releases, advertising or promotion of the agency’s services including client lists unless the company shall first have given its written consent which shall not be unreasonably withheld;
(e) that all the obligations set out in the preceding sub-clauses of cluase 11, will apply at all times both during and after the termination of this agreement.
12. (1) The company may terminate the agreement in the event of a breach by the agency of this agreement which is not rectified by the agency within thirty (3) days of receipt of a written notice by the company relying on such breach to terminate the agreement, or in the event the agency attempts to assign any of its rights or obligations hereunder (other than nay delegation of its obligations to recognised suppliers producing work under the supervision of the agency) or in the event the agency merges with or is acquired by another agency or in the event the agency becomes insolvent or any insolvency proceedings are instituted by or against it.
(2) The rights, duties and responsibilities of the agency and the company will continue in full force and effect during any period of notice given pursuant to sub clause 12(1) of his agreement.
(3) Media commissions for work already placed by the agency shall continue for either the duration of the campaign, or ninety (90) days, whichever is the shorter period.
(4) Upon termination of this agreement, the agency will transfer to the company, all property and materials in its possession or control paid for by the company and all contracts and reservations for time, space, talent and other advertising adjuncts entered into by the agency for the company.
(5) The company will indemnify and hold harmless the agency on all incompleted contracts, reservations and non-cancellable commitments entered into by the agency on behalf of the company.
(6) The company agrees to reimburse the agency for production costs (plus the percentage service fee of seven and one half percent (7½%) of any uncompleted work previously authorised by the company and the company will have the right to complete and use such material and ideas in its future advertising.
(7) Any uncancellable contract made on the instructions of the company and still existing at the expiration of the notice of termination shall be carried to completion by the agency and paid for unless mutually agreed in writing to the contrary, in accordance with the provisions set out in this agreement.
(8) Subject to the provisions of this agreement the rights, duties and responsibilities of the agency shall cease from the date of expiration of notice of termination and where the closing dates of the ordering and billing of advertising in media falls after the date of receipt of such notice the agency shall not effect such ordering and billing except when required to do so under clause 12.
13. All notices to be served pursuant to the terms of this agreement shall be served personally or shall at the option of the party giving notice be sent by registered pre-paid post addressed to the other party at the address of that party mentioned in this agreement and notice shall be deemed to have been given on the date it is posted.
14. The agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of ___________ .
15. If any part of this agreement is found to be invalid or of no force or effect under any applicable laws, executive orders or regulations of any government authority haviung jurisdiction, this agreement shall be construed as though such part had not been inserted herein and the remainder of this ageerement shall retina its full force and effect.
EXECUTED AS A DEED
THE COMMON SEAL of [company] )
was duly affixed in )
accordance with its articles )
of association in the presence of ) ………………………….
[Signature of director/company secretary]
THE COMMON SEAL of [agency] )
was duly affixed in accordance )
with its articles of association )
in the presence of ) …………………………
[Signature of director/ company secretary]
is made the day of , a company incorporated in Malaysia and having its registered office at ___________________________ (“company”) , a company incorporated in Malaysia and having its registered office at _______________________ (“agency”).