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I run an ad agency and commercial production company - I put

Customer Question
a standard agreement on the...
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.
Submitted: 4 years ago.Category: Business Law
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8/26/2013
Business Lawyer: MDLaw, Attorney replied 4 years ago
MDLaw
MDLaw, Attorney
Category: Business Law
Satisfied Customers: 6,135
Experience: Experience in business law, contract law and related matters.
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Hello and thank you for using the Just Answer website. I look forward to assisting you.

Just so that I understand what you are asking (so that I can give you the best answer possible), you want to know if it is possible that you would be sued by a client and you want to know how to prevent any such lawsuits. Is this correct?

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Customer reply replied 4 years ago
1)I want to be sure my agreement is fairly iron clad. (The agreement they sign when purchasing advertising time through my agency).

2)I want to be sure I am covering myself from any such lawsuit the best I can - And how.

We help our clients find media outlets to advertise on but never promise any sort of ROI or return. All we can do is buy the air time for them and get their ads on the air, if they do not air by fault of the tv or radio stations - the media outlets have to get them on in similar time slots as soon as possible(as specified) in the contract.
Business Lawyer: MDLaw, Attorney replied 4 years ago
Thank you for the additional information, Tony. Before we continue, I need to know if you understand that we can't give you legal advice on this site. We can only provide you with legal information. In other words, I cannot perform any legal work for you but I can answer general questions, i.e. your questions about what the clause states and whether it is enforceable and things of that nature.

If you understand this and agree that you understand the terms of the JA website, then please respond letting me know that you understand and then we can continue. Thanks!

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Customer reply replied 4 years ago
I know. Its information and facts I'm looking for here.
Business Lawyer: MDLaw, Attorney replied 4 years ago
Thank you, XXXXX XXXXX wanted to make sure because you asked if it was iron clad and wanted you to know that I obviously cannot answer that since I can't give you legal advice.

First, I'm sure you are aware of this, although many are not, but people can sue for anything in this country, even if they don't have a valid or winnable claim. Therefore, even if someone has what they feel is the perfect contract, people and companies still do get sued.

Second, so long as you do not make specific promises in your contract, you should be fine. For example, so long as you don't promise that if they sign with you, you "guarantee" or "promise" that X will happen, you should be protected. Most agreements will have language that says best efforts will be used. You also want to be sure not to make such promises verbally either. You can discuss what your past results have been but you want to be sure not to promise anything.

When you ask what you can do to prevent lawsuits, the best thing is of course to have a great contract that has been drafted by an attorney. However, even in those cases, people still may sue and you can't do anything to prevent that. Even here on Just Answer, I see people get told by experts that they don't have a legal basis upon which to sue but they say they are intent on suing no matter what.

The one thing that I would urge you to do with that clause is to edit it so that there are no spelling or grammatical errors. In contract law, a missing period or extra comma can have major significance. Also, while the language in that clause is standard language and enforceable, it is the part under Performance that will be key. I see that you reference that portion of the contract in the clause you pasted. However, it is that clause that needs to be reviewed because, if someone were to sue you, it would be the substance of the contract that would be at issue.

Please let me know if you need any additional information, Tony, and thanks in advance for allowing me to assist you this afternoon.
MDLaw
MDLaw, Attorney
Category: Business Law
Satisfied Customers: 6,135
Experience: Experience in business law, contract law and related matters.
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