I run an ad agency and commercial production company - I put a standard agreement on the bottom of my media buying contracts
that I have clients sign when they agree to the media plans we put together for them (per their request). They pre-pay us for all the radio, tv, print, etc that we buy for them, and approve all purchases in detail. We make the standard 15% commission the net goes to the media outlets.
I want to make sure that the verbiage we are using on the agreements will hold up and is solid.
I've never had it happen, by but my fear is that one day - if we have a client who does not see a good return on an ad campaign, gets angry and tries to go after my company for not seeing a return.
1) Is this even possible? As common sense would tell you there are no guarantees with advertising, and I never promise a return of any sort, only that we are buying the media as outlined.
2) What can I do to prevent such an incident from ever happening. (Other than buying the media and doing our job as outlined in the contract).
Here is the verbiage as of right now: Note (company name) is where I put my company name.
Here is what I currently have on our agreement?
TERMS OF SERVICE & AGREEMENT TO HOLD HARMLESS:
Signature and/or payment represent full understanding and agreement to terms of service.
AIR TIMES CAN NOT BE CONFIRMED AND COMMERCIALS WILL NOT AIR UNTIL PAYMENT HAS BEEN FULLY CLEARED BY FINANCIAL INSTITUTIONS. IN THE EVENT THAT PAYMENT IS LATE AND REQUESTED AIR TIMES ARE NO LONGER AVAIL THE OPTION FOR ALTERNATIVE AIRTIMES WILL BE OFFERED AND FUNDS WILL BE APPLIED TO NEW AIR TIMES AND ADJUSTED RATES THE MEDIA OUTLET CHARGES AT ADJUSTED TIME. V MARKETING & MEDIA (VM&M INC) WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY EVENTS BEYOND V MARKETING & MEDIA’S REASONABLE CONTROL (ACTS OF GOD), PREFORMANCE OF MEDIA ON SELECTED STATIONS FOR ANY REASON (INCLUDING FORMAT CHANGES, BREAKING NEWS, PREFORMANCE OF AIR TALENT, AUDIENCE RESPONSE). VM&M INC WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES FOR ANY FINANCAL GAIN OR LOSS TO CLIENT AS A RESULT OF AIRNG MEDIA IN ANY FORM FOR ANY LENGTH OF TIME OR FREQUENCY. IN ADDITION, THE PARTY’S AGREE THAT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND. THIS CONTRACT IS STRICTLY A “PURCHASE OF AIRTIME and PRODUCTION SERVICES” AS OUTLINED. VM&M INC DOES NOT IN ANY WAY WHATSOEVER WARRANT OR MAKE ANY REPRESENTATION, GUARANTEE OR SUGGESTION THAT ANY NEW BUSINESS
, INCOME, PROFIT, CUSTOMER INQUIRY, CALL VOLUME, WEB VIEWS, RESPONSE, EVENT ATTENDANCE, VOTES, TICKET SALES, INCOME OR SALE OF ANY KIND WILL BE FORTHCOMING TO CLIENT AS A RESULT OF ADVERTISING PLAN AS OULINED ON THIS COUNTRACT AND/OR USING VM&M INC’S SERVICES IN ANY WAY. ALL SALES ARE FINAL,NO REFUNDS WILL BE GRANTED FOR ANY REASON. START DATES FOR AIRINGS MAY BE ADJUSTED IN THE EVENT THAT PAYMENT DOES NOT CLEAR OR CREATIVE/COMMERCIALS ARE NOT SUBMITED BY DEADLINES. IN THE EVENT OF A COMMERCIAL NOT AIRING IN SELECTED TIME SLOT, “RE-AIRING” OR MAKE GOOD WILL BE MADE FOR THE INDIVIDUAL MISS-AIRING(S) IN A COMPORABLE TIME SLOT ON THE SAME STATION. CLIET AGREES TO INDEMNIFY, SAVE AND DEFEND VM&M FROM ANY DAMAGES INCURRED BY CLIENT AS A RESULT OF THE ACTIONS (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE AND/OR BREACH OF CONTRACT) OF ANY THIRD PARTY THAT CAUSES CLIENT DAMAGES. THIS AGREEMENT SUPERCEEDS AND VOIDS ALL PREVIOUS AGREEMENTS AND/OR COMMUNICATIONS VERBAL, WRITTEN AND DIGITAL BETWEEN CLIENT AND VM&M INC. If ANY PART OF THIS AGREEMENT IS FOUND TOBE UNENFORCEABLE UNDER ANY APPLICABLE LAW, THAT PORTION SHALL BE STRUCK FROM THIS AGREEMENT WITH THE REMAINDER OF THE AGREEMENT REMAINIG IN FORCE.