Agency 720 is herein appointed by your LMA (“Advertiser”) as its exclusive marketing communications and advertising consultant pursuant to the terms of this agreement (“Agreement”) and any Cost Estimate agreed to by Advertiser, which shall incorporate the terms of this Agreement by reference. Cost Estimate as referenced in this Agreement is any document signed by Advertiser that authorizes Agency 720 to commence work on your behalf.
This Agreement begins on the date that a Cost Estimate is signed by Advertiser or on the date that Agency 720 commences work on Advertiser’s behalf, whichever is earlier, and will continue in full force and effect in perpetuity until either Agency 720 or Advertiser terminates it upon not less than sixty (60) days’ advance written notice.
3. Scope of Work.
During the term, Agency 720 shall provide Advertiser with marketing communications and advertising consulting services for a mutually agreed upon price. In addition to the terms set forth in this Agreement, any terms set forth in a Cost Estimate that is signed by Advertiser shall be incorporated into this Agreement.
4. Client Authorizations; Payment.
Before commencing any work on behalf of Advertiser, Agency 720 shall obtain Advertiser’s approval. Advertiser acknowledges that its failure to timely authorize Cost Estimates and price quotes will prevent Agency 720 from starting work and could result in missed deadlines. If possible, approvals will be in writing (including email), but approvals can be oral with prompt written confirmation. Approval of a Cost Estimate or price quote by Advertiser will constitute approval of the costs and charges included in it. If applicable, Agency 720 will invoice the payment administrator (currently Advertising Checking Bureau or ACB) monthly for the amounts of all Cost Estimates and price quotes approved by Advertiser during that month and Advertiser will cause Agency 720 to be paid the same within thirty (30) days. Advertiser remains solely responsible for all payments. Once approved, Cost Estimate and price quotes are deemed to be firm fixed price quotes and will remain the same unless mutually agreed by the parties. Advertiser acknowledges and represents that the person(s) who approve Cost Estimates and price quotes are authorized to bind Advertiser.
(a) Upon the issuance of a termination notice by either Advertiser or Agency 720, the rights, duties and responsibilities of the parties shall continue in full force and effect during the sixty (60)-day termination notice period, including the payment by Advertiser of Agency 720 invoices for services authorized by Advertiser. Any uncancellable contract made on Advertiser’s authorization, and still existing at the termination of this Agreement, will be automatically assumed by Advertiser and will be transferred to Advertiser or its agent. All associated costs will be paid for by Advertiser and Agency 720 will be released from any related obligations. Any materials or services that Agency 720 has committed to purchase for Advertiser and any uncompleted work previously approved by Advertiser specifically or as part of a program shall be paid for by Advertiser as specified herein.
(b) If a commercial producer has entered into contracts with talent who have performed or will perform in commercials on Advertiser’s behalf, such contracts will be automatically assigned to Advertiser simultaneous with the termination of this Agreement. Advertiser will assume all of the rights and obligations under all such assigned contracts and the commercial producer shall be relieved of any further responsibility or liability with respect to them. Advertiser shall also indemnify Agency 720 against any expense or loss that either may incur (including but not limited to reasonable attorneys’ fees) as a result of claims relating to such contracts that arise after their assignment to Advertiser.
(c) Upon termination of this Agreement and upon receipt of final payment of all amounts owed by Advertiser under this Agreement, Agency 720 will transfer, assign and make available to Advertiser or its representative all property and materials in its possession or control belonging to and paid for by Advertiser, together with all information in Agency 720’s possession or control regarding your advertising. Agency 720 also will reasonably cooperate in transferring to you, with the approval of third parties in interest and after being released from all obligations relating to the same, all reservations, contracts and arrangements with others for services and materials yet to be used. Upon termination of this Agreement for any reason, neither party will make an announcement or release of any kind to the press or other news media without the written consent of the other.
All marketing communication materials prepared by Agency 720 will remain the property of Agency 720, but Advertiser will have a limited license to use the same. Likewise, all commercials produced by a commercial producer who becomes a party to this Agreement will remain the property of such commercial producer, but Advertiser will have a limited license to use same. In either case, there may be limitations on Advertiser’s use and ownership of such materials because of the rights of third parties; during the term of this Agreement, Agency 720 will endeavor to keep you informed of any such third party rights and limitations, and, during and after the term of this Agreement, Advertiser will indemnify and defend Agency 720 against any claim that alleges the use of any materials by or for Advertiser was in a manner inconsistent with such rights and limitations. All databases of information and specialized database applications, software applications, computer programming and coding developed by or for Agency 720 (other than any confidential, proprietary information, programs, databases or applications specifically provided by Advertiser to Agency 720 in connection with Agency 720’s performance of services under this Agreement) will be and remain Agency 720’s sole and exclusive property.
(a) Agency 720 will indemnify and defend Advertiser against any and all loss, damage, or expense (including but not limited to reasonable attorneys’ fees) that Advertiser sustains as a result of:
(i) any claim, suit or proceeding based upon materials created or provided by Agency 720 under this Agreement which have not been approved by Advertiser prior to their publication, broadcast or dissemination;
(ii) any claim, suit or proceeding relating to materials created or provided by Agency 720 under this Agreement which is based on a claim that an element created or provided by us in such materials violates the rights of a third party, or constitutes libel, slander, defamation, trade piracy, invasion of privacy or unfair competition, or constitutes infringement of copyright or title; and
(iii) gross negligence by Agency 720 in the protection of items of Advertiser’s property in its care.
(b) Advertiser will indemnify and defend Agency 720 against any and all loss, damage, or expense (including but not limited to reasonable attorneys’ fees) that Agency 720 sustains as a result of:
(i) any claim, suit or proceeding relating to materials used by or for Advertiser with its consent which is based upon a claim that information or material provided by you is false or that its use violates the rights of third parties, or is a false or misleading comparative/competitive claim;
(ii) any claim, suit or proceeding based upon a claim relating to Advertiser’s, General Motors’, or any of its divisions’ trademarks or service marks or upon a claim that Advertiser’s products or services are defective in design, operation, material or workmanship, including, but not limited to product liability claims;
(iii) any claim, suit or proceeding relating to an element for which Advertiser agreed to accept responsibility prior to the publication, broadcast or dissemination of the materials containing such element, or which Advertiser approved or directed Agency 720 to use;
(iv) any claim, suit or proceeding relating to materials produced or altered by or for Advertiser by anyone other than Agency 720 at its direction, irrespective of whether Agency 720 created or produced any element(s) of such materials; and
(v) any claim, suit or proceeding relating to the purchase of media by or for Advertiser and/or payment for associated media costs.
(c) Upon the assertion of any claim or the commencement of any suit or proceeding against one party hereto by any third party that may give rise to another’s indemnification liability under this Agreement, the party seeking indemnification shall promptly notify the other party and provide the other party reasonable assistance and opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection. A party seeking indemnification from the other with respect to a suit or proceeding or claim will not settle the same without the prior written consent of the other party. Notwithstanding the above, neither party shall be liable to the other for indirect, incidental, consequential, special or exemplary damages arising in any manner from the activities contemplated by this Agreement, whether under contract, tort or otherwise, even if that party has been advised of the possibility of such damages, including but not limited to loss of revenue or anticipated profits or lost business. These indemnity provisions shall continue to apply if this Agreement is terminated.
8. Responsibility for Payments.
Agency 720 will be solely liable for all charges and fees relating to goods, services, rights, and other property purchased by or for Agency 720 on Advertiser’s behalf under this Agreement once Agency 720’s invoices relating to the same have been paid in full and notice has been received from the bank that funds have cleared. Prior to such full payment, Advertiser will be solely liable for all such charges and fees. Unless Advertiser asks Agency 720 to provide media buying or planning services as part of a Cost Estimate or price quote approved by Advertiser, Agency 720 will have no responsibility with respect to media buying and planning services, except to coordinate activities with Advertiser’s media planning and media buying agency. If Advertiser requests that Agency 720 buys media on its behalf, Advertiser agrees to pay Agency 720 in time to meet all media payment dates to ensure media time runs as ordered.
9. Performance of Suppliers.
Agency 720 will endeavor to guard against loss or damage to Advertiser through failure of suppliers and subcontractors to fulfill their commitments, but will not be responsible for any such failures on their part.
10. Cancellations and Revisions.
Advertiser will have the right at any time to direct Agency 720 to modify, revise or cancel any previously authorized plans, schedules or work in process. If Advertiser directs such a modification, revision or cancellation, Advertiser will be responsible for all payments in accordance with the terms of this Agreement and indemnify Agency 720 against all losses, costs or liabilities sustained as a result of the cancellation, revision or modification (including but not limited to cancellation penalties and third party claims).
Each party will safeguard all the confidential information and materials that are provided to it by or for the other party and protect such confidential information from disclosure to third parties, using the same degree of care as it uses with respect to its own confidential information. This confidentiality obligation will continue to apply following any termination of this Agreement. Upon written demand from a party, the other party will destroy or return all documents and other materials containing or reflecting any such confidential information of the demanding party.
12. Other Agreements.
Advertiser acknowledges that production and use of commercial materials produced on its behalf could become subject to the terms and conditions of other agreements governing the hiring and use of performers, including but not limited to the SAG or AFTRA Commercials Contracts. Advertiser agrees to pay for all amounts due under such other agreements, including but not limited to union agreements, with respect to material produced and/or used on its behalf and to indemnify, defend and hold harmless Agency from any claims asserted under such other agreements in connection with the production and/or use of such material, whether such claims arise or are asserted during or after the term of this Agreement.
Advertiser will be responsible for all applicable taxes which may become due, assessed, or measured by the performance of Agency 720 under this Agreement, regardless of the party upon whom the obligation is imposed, and Advertiser will indemnify, defend and hold harmless Agency 720 and/or any commercial producer against all costs and expenses (including but not limited to reasonable attorneys’ fees, taxes, penalties, interest and fines) incurred as a result of Advertiser’s failure to pay any tax when due.
14. Amendment and Waiver.
This Agreement constitutes the entire understanding between the parties and it may not be altered or waived except by a written agreement signed by authorized representatives of each party. No waiver by any party of any breach of this Agreement will constitute a waiver of or consent to any subsequent breach of this Agreement.
15. Force Majeure
Neither party shall be liable for any failure or delay in performance under this agreement, (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including without limitation. The party experiencing the difficulty shall give the other prompt written notice.
16. Arbitration and Applicable Law.
The sole remedy for the resolution of disputes under this Agreement will be arbitration before one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, such arbitration to be held in Oakland County, Michigan. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles. In resolving any dispute under or construing any provision of this Agreement, no presumptions, inferences, or effect will be made relating to which party was responsible for its drafting or because of its drafting history or with reference to the heading of the various sections and subsections, which are for reference only. If any provision of this Agreement is construed to be invalid, illegal, or unenforceable, the remaining provisions shall not be affected and will be fully enforced.
17. Compliance with Laws.
Each party will comply with all applicable laws and regulations in connection with activities under this Agreement and represents that there are no agreements that prohibit or restrict it from entering into this Agreement. Each party further agrees to comply with the LAM Program established by General Motors Corporation (GM), as amended from time to time. Each party represents and warrants that the individual executing any Cost Estimate is fully authorized to bind that party.
Delinquent balances will accrue interest at the greater of 1.5% per month (18% annually) or the maximum amount chargeable by law and Advertiser will also be responsible for any payment collection costs incurred, including reasonable attorneys’ fees.
All notices that are required or permitted under this Agreement will be given by registered mail or by personal delivery. Such notices will be considered as being given on the date of receipt.