Exclusive fee in the advertising agency
Sample agency contract
As of August 9, 2019
This sample contract was drawn up by the law firm Kolonko Rechtsanwälte and the General Association of Communication Agencies GWA. It serves as an aid to regulate the cooperation between companies (clients) and communication agencies in a legally clean manner. The contract template is a template that needs to be supplemented, changed and edited in individual cases. Contact person: GWA lawyer Martin Bonelli ([email protected])
of the company
- hereinafter referred to as "customer" -
the communication agency
- hereinafter referred to as "Agency" -
The aim of the cooperation between the customer and the agency is to optimize and expand the advertising and communicative appearance of the customer's company, its products and / or services in the market. In order to achieve this goal, both contractual partners see each other in a mutual trust relationship and agree the following:
The customer commissions the agency to provide comprehensive advertising and communication support
- of the products:
- the services:
- of the company itself (image advertising, corporate design and the like)
in ___________________ (contract area). The above products, services and the company are collectively referred to below as "products".
The agency accepts this order and guarantees the customer the closest cooperation and protection of his interests at all times.
B. COOPERATION PRINCIPLES
- The agency provides the contractual services properly, on time and professionally in accordance with the agreed requirements and quality criteria or - unless otherwise agreed - according to the principles of proper professional practice.
- The contracting parties agree at regular intervals on progress and obstacles in the implementation of the commissioned services. If there are any deviations from the agreed procedure or if there are any doubts about the correctness of the other's procedure, they will inform each other immediately.
- Dates for the provision of services are only binding if they are expressly designated as such. Otherwise, these are target dates that will be further developed as part of project management. In the case of target dates, the customer may request the provision of the outstanding services in writing within a reasonable period after the expiry of an appropriate deadline; at the end of this period, the customer's entitlement to this service is due.
- A legal examination of the agency's performance results, in particular according to competition, trademark, copyright and personality law, is expressly not the agency's task. The same applies to the implementation and legal evaluation of trademark law searches and / or to the examination of the registrability of trademarks and designs / registered designs.
- The agency employs qualified and reliable staff to fulfill its service obligations. The agency decides at its own, dutiful discretion which employees are to be used or replaced to provide services in accordance with the contract. The agency reserves the right to replace an employee with another employee with the necessary qualifications for an important or legitimate reason. It is only authorized to give instructions to its employees regardless of their location. Agency employees are not integrated into the customer's operations and do not enter into an employment relationship with the customer.
- The agency is fundamentally free in terms of time and place with regard to the type of implementation of the commissioned services.
C. AGENCY SERVICES
1. Analysis and advertising preparation
1.1 Analysis of the market position and the competitive situation of the products to be supported.
1.2 Investigation and evaluation of target group structure and behavior on the basis of existing studies or other generally accessible secondary materials.
1.3 Development of proposals for additional market, product and consumer studies and recommendations of suitable market research institutes for their implementation.
2. Advertising advice / strategy
2.1 Market strategy, advertising and technical advice in all questions of classic, digital and cross-media advertising communication including social media / influencer marketing / content marketing / community management / customer relations (CRM) / marketing automation
2.2 Formulation of the advertising goals on the basis of the communication goals agreed with the customer.
2.3 Development of the communication strategy and advertising concept for all media, networks, blogs, forums and other advertising opportunities.
2.4 Evaluation of advertising material and advertising media research to optimize the use of advertising.
3. Advertising design (creation)
3.1 Development of texts and creation of drafts (raw layouts) for classic and digital media.
3.2 Development of storyboards / treatments for film, radio and television advertising (classic and online)
3.3 Conception, development and design, production and production management for online advertising material (banners, advertorials, content marketing, influencer marketing) for use in digital media and social media, forums and blogs.
3.4 Development of claims, slogans, jingles.
4. Finalization (final artwork, pure layouts)
Production of all final drawings / layouts or illustrations required for the production of advertising material and implementation of the corresponding DTP typesetting work.
5. Production of advertising material (allocation, coordination, monitoring)
5.1 Determination of the most economical manufacturing processes and methods.
5.2 Selection of suitable specialists or suppliers such as graphic designers, programmers, photographers, printers, film producers, sound studios, speakers, models.
5.3 Obtaining 3 supplier offers, whereby the customer can name one supplier at a time. This regulation does not apply if it is to be expected that the offer will not exceed an amount of EUR 2,000 net, or in the case of follow-up services from a supplier that has already been mutually selected.
5.4 Placement of orders after approval by the customer, coordination and monitoring of the proper and timely execution or the direction and production of filming and recording work and post production in the FFF sector; Invoice control and payment processing.
D. FURTHER SERVICES OF THE AGENCY (PROJECT ORDERS, MEDIA)
1. At the special request of the customer, in addition to the services according to Section B, the agency can take on the following tasks for a fee to be agreed separately on the basis of approved cost estimates or on the basis of a separate project order or on the basis of a media contract:
Media planning and media switching.
1.2 Digital film, animation film and video productions, also using virtual reality (VR) and augmented reality (AR)
Implementation of all research measures such as copy tests, pre and post tests, recall examinations.
1.4 Development of brands, names, packaging design
Development of brands, names and trademarks, equipment and packaging design.
1.5 Corporate design
Development and revision of logos, company logos and business equipment.
1.6 International coordination (lead)
Integration of advertising measures in an international concept and coordination with foreign agencies; Takeover of a lead agency function.
1.7 Direct Marketing
Development of direct marketing and customer relationship measures (CRM) in text and layout.
1.8 Sales Promotion
Consultancy, planning and implementation work in the field of sales promotion, field service meetings, specialist events, symposiums and the design of display material, brochures and other sales aids.
1.9 Exhibition and event marketing
Conception, development, implementation, coordination and monitoring of trade fairs and events.
Development and implementation of sponsoring concepts.
1.11 special texts
Development of specialist texts and foreign language texts.
1.12 Database Management
Generation of addresses; Archiving of digital data, construction and administration of a database for access by the customer.
1.13 Radio / radio
Development and implementation of radio spots (online and offline)
1.14 websites / apps
Conception, development and design of websites (corporate, microsites, web shops) and apps.
1.15 Development and implementation of podcasts
1.16 SEA / SEO measures
Implementation, coordination and monitoring of search engine marketing (SEA) and search engine optimization (SEO)
1.17 Development and implementation of user experience design (UX design)
1.18 Development and implementation of marketing automation
2. If these services are awarded to the agency by means of separate project orders or media contracts, the provisions of the project order or the media contract apply primarily and, secondly, in addition, the provisions of this contract.
E. CUSTOMER PARTICIPATION
1. Information on promotional activities and budget
1.1 The customer will inform the agency of the expected scope of business with regard to the planned advertising activities and the available budget before the new financial year. The customer will immediately notify the agency of any significant changes to these communicated plans. The details of the advertising budget must be presented in a comprehensible manner and, if necessary, verifiable on the basis of appropriate evidence.
1.2 The customer will provide the agency with all data and information about marketing goals, markets and products that are necessary or useful for its work. The agency undertakes to treat those according to 1.1. and 1.2 transmitted data and information.
2. Duty to provide support / permits
The customer will support the agency to an appropriate extent in fulfilling its contractually owed service. This includes in particular the timely provision of information and data material, insofar as the customer's cooperation requires this. The customer will issue approvals in good time so that the work flow of the agency and thus the implementation of the advertising measure is not impaired. If the agency is unable to provide the services or only with additional expenses due to a lack of and insufficient cooperation or provision, it is entitled to claim the necessary additional expenses from the customer.
3. Responsibility for the customer's content
If the customer provides the agency with materials and / or content (e.g. brand logos, advertising texts, products), he assures that these are free from third-party rights and that their use or publication does not in any way violate applicable law. The content provided also includes such content and its sources that the customer recommends or suggests to the agency with regard to the implementation of the commissioned services. Should the agency be called upon by third parties due to such content originating from the customer, the customer shall release the agency from these claims (including the necessary legal costs) upon first request.
F. USE OF SUBCONTRACTORS, EXTERNAL SERVICES
- The agency has the right to use subcontractors or freelancers (service providers) to fulfill the commissioned service obligations. These are considered vicarious agents (§ 278 BGB) of the agency. The service providers commissioned by the agency must also comply with and observe the obligations described in this contract that apply to the agency, in particular confidentiality and data protection.
- Third-party services from third parties (e.g. production, programming, printing, editing, translations, legal advice, trade fair construction) are shown separately by the agency on behalf of the customer. Unless otherwise agreed, third-party services are commissioned either in the name and for the account of the customer or in the name of the agency and for the account of the customer.
G. AGENCY REMUNERATION
1. Services according to C 1–3
For the services within the scope of section C 1-3, the agency calculates a fee on the basis of the net marketing and communication budget managed by the agency (hereinafter referred to as "advertising budget"), scaled down according to the amount of the advertising budget as follows :
Supervised budget fee as a percentage of the budget
up to __________ euros ____ percent
from __________ to __________ euros ____ percent
from __________ euros ____ percent
The annual fixed minimum remuneration of the agency is __________ EUR. This part of the remuneration is paid in 12 equal monthly installments, on the first of each month of the corresponding year. The amount of the minimum remuneration is checked by both parties when the advertising budget is announced in accordance with E 1.1 and, if necessary, increased or reduced accordingly.
2. Services according to C 4
The agency calculates the services according to C 4 on the basis of the hourly price list and the agency's list of technical costs.
3. Services according to C 5
For all services of the agency according to Section C 5, the fee is agreed within the framework of cost estimates approved by the customer. The calculation basis is the current remuneration rates of the agency price list at the time of the service; As a rule, these services are charged on an hourly basis. A deviation from applies to approved cost estimates
+/- 10 percent as covered by the permit.
4. External costs
All third-party costs incurred in the context of this contract will be passed on to the customer with a surcharge of 15 percent on the net amount, accompanied by receipts.
5. Services according to D
For all services within the scope of Section D, the fee is agreed between the customer and the agency within the framework of the respective project order or the media contract. If no agreement has been made, the agency's current remuneration rates at the time of the service apply; As a rule, these services are calculated on an hourly basis on the basis of the agency's current price list; Media services are usually calculated on the basis of a percentage of the switching volume as specified in the media contract.
6. Cash expenses, GEMA, KSV costs
6.1 Cash expenses and special costs incurred by the agency at the express request of the customer will be charged at cost price. These include, for example, extraordinary communication, shipping or reproduction costs.
6.2 GEMA fees, artist social security charges and customs costs and similar costs will be invoiced to the customer net, even if they are only charged afterwards.
7. Travel expenses
If the agency provides services outside of its headquarters in agreement with the customer (for example to monitor film, radio and television work, pressure monitoring and print approvals, trips to the customer), it is entitled to reimbursement of travel costs beyond the agreed remuneration (train journeys of the 2nd class, economy class flights or trips by car with 0.30 euros / km net) including all necessary expenses, expenses and expenses. Travel times are billed according to actual expenditure at the hourly or daily rate.
8. Sales Tax
All remuneration of the agency is exclusive of the legally applicable sales tax. In the case of invoices to service recipients outside the Federal Republic of Germany, no German sales tax will be charged and will be shown in the invoices. The respective VAT number of the service recipient to be specified by the agency by the customer must be stated on these invoices.
9. Due dates and discounts
9.1 The invoices issued to the customer by the agency are due upon receipt and without any deductions. In the case of advance payments, the customer will be reimbursed for all available cash discounts.
9.2 In the area of advertising production, the agency creates the invoice after an order has been concluded. In the case of larger orders or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up payments on account.
9.3 Discounts on agency fees are not granted.
H. RETRIEVAL OF AGENCY SERVICES (AWARD OF CONTRACTS)
The briefing by the customer forms the basis of the agency's activities. If the briefing is given orally, the agency must prepare a briefing protocol. This becomes a binding working document; in this respect, the provision on meeting minutes in section 4 applies accordingly.
Before starting any work that causes costs, the agency must provide the customer with a cost estimate in writing.
3. Placing an order
3.1 The customer places the order with the agency by approving the cost estimate. The approval should usually be given in writing. If it is given orally, it should be recorded in the minutes of the meeting.
3.2 Smaller individual orders up to a maximum of __________ euros net as well as orders in the context of ongoing work such as interim recordings, typesetting costs, retouching and the like do not require the submission of cost estimates and prior approval by the customer.
3.3 After approval by the customer, the agency generally issues production orders in the name and for the account of the customer. The agency monitors production and checks the production result.
4. Meeting minutes (contact reports)
The work assigned to the agency typically requires constant contact and coordination with the customer. The agency will create minutes of the meetings in writing of such meetings and send them to the customer immediately. These protocols are considered commercial letters of confirmation. Agreements and orders contained therein and the other content are binding if and to the extent that the customer does not object in writing within three working days.
I. CHANGES IN WORK (CHANGE REQUEST)
- Subsequent changes to the commissioned services (change request) by the customer must be communicated to the agency as early as possible and in sufficient detail and require express confirmation by the agency in order to be effective.
- If there is a subsequent change to the service description, if the originally commissioned service is not or only partially feasible, the agency is entitled to discontinue further service provision. The agency will inform the customer of this. If the customer objects to the cessation of services, the agency will continue to provide the original service.
- If the agency incurs additional costs as a result of the change request, the agency will inform the customer of this. The agency is entitled to invoice the customer for the additional services.
J. USE RIGHTS; SCOPE AND REMUNERATION
1. All copyright and other rights of use to the agency's work results released and paid for by the customer for commercial use are transferred to the customer to the extent required by the purpose of the respective order on which both contractual partners are based in accordance with H. of this contract. In case of doubt, the agency fulfills its obligations by granting exclusive rights of use in the territory of the Federal Republic of Germany for the media and duration of use of the advertising measure envisaged by the contracting parties in each case. Any further use of the agency's work results requires the agency's separate approval.
2. If the agency uses third parties to fulfill the contract, it will acquire the rights of use for their services in the scope of the above regulation for the customer at the customer's expense and accordingly transfer them to the customer. If these rights are not available to this extent in individual cases or if their acquisition is only possible at disproportionately high costs, the agency will inform the customer of this and proceed according to his instructions. The customer bears the resulting additional costs.
3. The customer is entitled to transfer the rights of use in whole or in part to subsidiaries or affiliated companies within a group.
4. The agency is entitled - even if exclusive usage rights are transferred to the customer - to use the work results free of charge as part of its self-promotion, stating the customer's name, even after the end of the contract, in all media including the Internet, social media and in the context of competitions and presentations such as the GWA yearbook.
5. If the agency creates software as part of its contractual services, the respective source code and the corresponding documentation are not the subject of the rights granted to the customer. If the customer wishes the source code to be provided, this must be agreed separately with the agency.
6. The transfer of rights to the customer does not include the agency's services (concepts, ideas, drafts, etc.) that have been rejected, canceled or not used within 6 months after delivery. These rights of use remain with the agency, as well as the existing property rights.
7. The rights of use mentioned in paragraph 1, sentences 1 and 2 above are settled with the payment of the remuneration agreed in this contract under E. An expansion of use beyond the end of the use of advertising material and / or beyond the contract area and / or for use in other types of use / advertising media than those specified in the respective order and / or the right to edit the work results of the agency requires the express prior consent the agency and must be paid for separately.
8. For the negotiation of buyouts for the use of the work results of third parties, the customer has to pay a service fee of xx% on the net usage fee of the respective third party to the agency.
9. The agency assumes no liability for legal claims by authors to subsequent payment increases according to §§ 32, 32a UrhG; The customer releases the agency from such claims upon first request. As a precautionary measure, the agency advises the customer that, under the Copyright Act, an author has further legal claims against the owner of usage rights (e.g. information, accountability and recall), which cannot be contractually excluded.
1. The agency is liable to the customer within the framework of this contract for the diligence of a proper advertising salesman. The liability of the agency and its representatives and vicarious agents for slightly negligent breaches of duty is excluded with the exception of the breach of essential contractual obligations (so-called cardinal obligations), injury to life, limb and health, in the case of claims from a guarantee as well as from the product liability law.
2. As far as the agency, its representatives and vicarious agents are liable according to the above provision in paragraph 1, the liability is limited to the compensation of the foreseeable and contractually typical damage according to the type of service.
3. The agency will inform the customer in good time of any recognizable legal risks associated with the content or the design of planned advertising measures. The agency does not undertake its own legal review of the services it provides. If the agency deems a legal (e.g. competition or trademark law) review by a particularly competent person or institution to be necessary for the implementation of the measures, the customer shall bear the costs after consultation.
4. Liability on the part of the agency is excluded if and to the extent that the agency has informed the customer in writing of concerns about the compatibility of the advertising measure with applicable law and the customer decides against a change in the relevant contractual services despite the notice. In these cases, the customer releases the agency from third-party claims upon first request. This also includes the necessary legal costs.
5. Claims by the customer become statute-barred one year after the commissioned services have been provided. Excluded from this are claims due to injury to life, body or health and / or due to grossly negligent or intentional damage as well as claims from the assumption of a guarantee or from product liability - the statutory limitation periods apply in this respect.
L. USE OF THIRD PARTY SERVICES
1. If, when using third-party services by the agency, material or legal defects are due to a defective product from a third party who is not the agency's vicarious agent, and the agency passes the product on to the customer, the claims for defects are claims for defects of the customer is limited to the assignment of defect claims by the agency to the third party (e.g. when using open source software). The agency is responsible for the defect, however, if the cause of the defect was determined by the agency, i.e. the defect is based on an improper modification, integration or other treatment of the third-party product for which the agency is responsible.
2. The agency is not responsible if third party products are restricted or completely discontinued by the third party. If the third party introduces a fee for the provision of the third-party products, the agency has the right to adjust the remuneration agreed with the customer accordingly if the customer wishes to continue using the third-party products upon request and the remuneration would be borne by the agency.
3. The transfer of third-party products is considered clearly recognizable for the customer if the agency refers to it in the context of the order description or the order processing, if these result from the order or should have been recognizable for the customer based on its own expertise.
M. CONFIDENTIALITY / CUSTOMER DOCUMENTS
1. Protection of confidential information
The agency will use all information that it receives about the customer in connection with this contract or the orders concluded on the basis of this, the knowledge gained or derived from this information and the documents created on this basis or containing them (hereinafter: "confidential information" ) treat them confidentially beyond the end of the contractual relationship and only use them within the framework of the contractual relationship. It will protect the confidential information from access by third parties and - unless required to achieve the purpose of the contract - neither record it, nor make it accessible to third parties, nor use it.
The obligation of confidentiality does not apply to such information,
- which are publicly known or publicly accessible at the time of disclosure or which become publicly known or publicly accessible at a later point in time without the Agency being responsible for this;
- which the agency becomes aware of by other means than through the customer and without breaching contractual or statutory confidentiality obligations; or
- which the agency developed independently without recourse to the client's confidential information. Furthermore, it does not apply if the agency is obliged to disclose confidential information due to a legal obligation or a legally binding order from an authority or a court; it has to inform the customer of this in good time before forwarding, as far as permissible and possible. The agency may only release the confidential information to the extent necessary and must, as far as possible, ensure that the respective recipient keeps it confidential.
Otherwise, the agency may only disclose confidential information to third parties with the prior consent of the customer. No third parties in this sense are the agency's consultants and service providers who are either professionally obliged to secrecy or who have previously committed themselves to secrecy in writing to the agency.
2. Customer's documents
The agency must mark the documents provided by the customer, including documents, CD-ROMs, other storage units and the like, as the customer's documents, store them carefully, take suitable measures to protect against unauthorized access and against use, duplication and disclosure that is not in accordance with the contract to secure. The above obligations also apply to copies of the customer's documents.
3. Surrender or destruction of the documents
The agency is obliged to surrender to the customer all documents and data carriers received or created by it within the scope of the performance of the contract immediately after use in accordance with the contract, but no later than after the termination of this framework contract or the last contract concluded on the basis of it, or to destroy them at the customer's request; stored data must be irretrievably deleted. There is no right of retention. The provisions of this paragraph do not apply if the surrender, destruction or deletion are contrary to mandatory statutory provisions, in particular statutory retention requirements.
4. Obligation of vicarious agents to maintain confidentiality
The obligation of confidentiality also extends to the agents employed by the agency in the context of the implementation of this contract and the agency contracts concluded on the basis of it. It will impose corresponding confidentiality obligations on them and prove this to the customer upon request.
- The contractual partners will observe the statutory provisions on data protection, in particular the provisions of the GDPR and the BDSG-new, and oblige their employees accordingly. This also applies in particular with regard to the obligation of persons involved in data processing to maintain data secrecy (Section 53 BDSG-new).
- If personal data is transferred or processed in order to carry out the contractual services, the contractual partners conclude a separate order processing agreement (GCU).
O. CONTRACT DURATION
The contract begins on ____________. It is closed for an indefinite period of time and can be terminated with a notice period of 6 months to the end of the month, for the first time on _____________. The termination must be made in writing. The right to termination without notice for an important reason remains unaffected.
P. Regulations for the end of the contract
1. Insofar as the agency has entered into obligations towards third parties within the framework of this contract (firm orders), the customer declares that he is ready to fulfill these obligations even after the end of the contract with the agency's involvement.
2. The agency is ready to transfer reservations in tariff-bound advertising media for the period after the end of the contract to the customer or a third party named by him if the customer or the third party assumes the costs already incurred or incurred by the agency. The prerequisite for the transfer is that the agency is released from any liability and released by the customer to third parties upon first request.
- The agency undertakes not to take on any tasks that are the subject of the contract for the customer's direct competitors for identical or comparable products during the term of the contract.
- For its part, the customer undertakes not to commission any other advertising agency / communications agency in the contract area for the products and / or services managed by the agency (see Section A of this contract) during the term of this contract. In the event of termination, however, the customer can commission a new agency with work for the last two months of the notice period if this is necessary in order to be able to continue running projects smoothly after the contract has ended.
R. AMENDMENTS TO THE CONTRACT, JURISDICTION
- Changes and additions to this contract must be made in writing to be effective. The written form is also preserved by the text form according to § 126 b BGB (email, SMS, fax). This also applies if a "written" declaration is required in these terms and conditions or in the orders or contracts concluded between the parties.
- The validity of general terms and conditions (GTC) of both contracting parties is excluded.
- The customer may only transfer or assign claims against the agency based on this contract to third parties with the agency's written consent.
- Should any provision of this contract be or become ineffective, this shall not affect the validity of the rest of the contract. The ineffective provision should be replaced by a regulation that, within the framework of what is legally possible, comes as close as possible to the will of the parties.
- In the event of disputes arising from the conclusion, implementation or termination of this contract, the parties agree that the seat of the agency is the exclusive place of jurisdiction. German law applies exclusively to the contract. The provisions of the UN sales law are excluded.
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