Five important (and often overlooked) agency/client considerations
In part two of this view from the client side post, I wanted to talk more about a few considerations to discuss with your agency before you sign on the dotted line. At minimum, it opens the door to a conversation about expectations and deliverables, which will save everyone time and headache in the long run and in my experience, has played a key role in how satisfied clients and agencies feel about their relationship.
The below are my personal opinions, based on my own experiences. I'd also love to get your insights and thoughts in the comments section - I'm always up for learning something new!
It’s always good practice to clarify any payment terms, provisions, schedule and options. For example, if your company has a standard payment hold-back policy of say, 90 or 120 days, clarifying this with your agency up front can improve the working relationship later on.
Confidentiality, Non-Disclosure, Non-Solicitation and Non-Compete agreements
Unless you’re the NSA or big business, don’t get lost in the weeds on these. You’d need some pretty big bargaining power to ask for, say, a non-compete, but if you’re in a very competitive industry it’s never a bad idea to start a conversation. Spell it out and be specific if you’re concerned that any products of your work arrangement (i.e. research, unused concepts) could be re-purposed for use you’re not comfortable with.
Insurance and liability
We’ve all heard horror stories. A client commissions an agency to develop a new brand; launches the brand only to find out down the road it infringes on an existing trademark. Although in all fairness I’d probably push for full client indemnification, a reasonable approach would be to ensure there’s at least some mutual indemnification provisions. That way both the agency and the client feel protected. It’s also not a bad idea to spell out liability and ensure that the agency maintains at least minimal errors and omissions coverage, which simply makes good business sense as professionals in private practice and companies that provide professional services to clients are held to high standards of duty and accountability.
Deliverables and scope
Photography will be included with the brochure you just commissioned, right? Not necessarily. Nobody wants to feel like they’re on the losing end of a bait-and-switch, and a clearly defined scope of services can keep everyone on the same page. The same goes for timelines and accountabilities. A quick conversation with your agency about what isn’t included in the signing price can be all it takes to ensure that no one feels like they’ve paid for a Lexus and bought a lemon.
Governing law and jurisdiction
I’m going to suggest this isn’t necessary, but as more and more of our work is done virtually, with freelancers in different provinces or even different countries – it may not be a bad idea to discuss these sorts of contractual issues with a lawyer who has experience in matters like these.
And…my own standard disclaimer: this article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. If you’re getting your legal counsel from my LinkedIn post. Well, you and I are both in trouble, my friend ;)