The single most important document an Agency and a Brand can enter into is a Master Service Agreement. The MSA is the rulebook by which the parties enter into their new and hopeful relationship. The request for an MSA typically comes at 1 of 2 awkward times: (1) In a competitive pitch prior to winning the account, (2) Right when the account has been won, agency is working for free and can't be paid without a signed MSA. Both scenarios clearly start the relationship on a stressful foot and put the agency at a disadvantage.

So what is an Agency to do?

1. Keep perspective on the importance of getting this document right. There is never going to be a time when the client will want to open the agreement back up unless it is in their advantage to do so. Expedience is important in your review but rushing through these terms can cause serious ramifications for an agency once production or third party licensing ensues.

2. Stay firm on what matters. A client who bullies you into accepting terms that could crash your agency is not a partner to take on lightly. Sometimes work is work, I get it. But, believe what they say and don't accept non-payment, harsh termination language or sole liability in a relationship.

3. Ask for a brand's MSA document well in advance. They typically will want to use their own agreement and they have that template on file. Even if you haven't been awarded the work, getting the MSA in place early (or at least a copy to review) can alleviate a great deal of rush work. This may result in legal fees before knowing if you've gotten the job, but it can also get money in your your Agency before work is commencing so you aren't out of pocket.

4. Keep the peace. If this is a positive relationship and the parties are working together, there may be some options on how to proceed with the work comfortably while you are finalizing the MSA. Work with your legal or business affairs on this point to explore your options.

Master Service Agreements (“MSA”) set the foundation for terms for an ongoing business relationship. Typically, the MSA comes in two parts, the MSA terms, and the Statement of Work (“SOW”). MSA can have many different terms but listed below are some of the most common terms:

Term and Termination: This covers the duration of the MSA, any renewal, and termination rights for convenience or for cause.

Payment Terms: This section typically covers pricing, invoice timelines, payment timelines, what happens if amounts are disputed, and potentially late payment penalties.

Confidentiality: Absent an NDA this language can obligate both parties to protect each other’s confidential information during the term of the MSA or a defined term.

Intellectual Property Rights: This clarifies who owns existing IP, newly developed IP, if the agreement is work-for-hire, or any potential licensing arrangements.

Representations and Warranties: This section specifies assurances each party agrees to be responsible for in their performance of their obligations. For example, a party assuring they will not violate any laws or third-party rights.

Indemnification: This section covers the parties’ liability to be held responsible for action that produce third-party claim, IP infringement claims, or personal injury or damage caused by negligence of a party among other specified obligations.

Insurance Requirements: Most MSAs will have an insurance section requiring that a party maintain a minimum amount of coverage, so it’s important to make sure coverage requirements are satisfied or negotiated.

Data Protection and Security: In the new age where data rules, MSAs may incorporate data processing terms to comply with GDPR or U.S. data laws. It’s important to note if the services under an MSA involve processing data to negotiate this language as applicable or not.

Dispute Resolution: These terms can dictate how the parties will engage in any legal dispute for example by arbitration or formal legal proceeding.

While the MSA governs the entire relationship, an SOW governs project specific details. SOWs usually define the nature of services and any specifications of services or deliverables for a project are usually reserved for the SOW.

A Statement of Work (“SOW”) in the context of an MSA is a binding detailed project specific document that works within the overall guidance of the MSA. Simply put the MSA provides the legal guidance and guardrails of the parties’ relationship and SOW’s govern project specific details within that relationship without needing to renegotiate the MSA terms each time.

SOWs are typically structured in a way that includes the type of services to be rendered on a specific project, any number of deliverables, timelines, prices for service, and roles or responsibilities for each party. This ensures each party is aware of its own obligations and timelines for services and deliverables under the SOW. Also, if allowed by the MSA language, SOW’s may contain additional legal language not defined or contemplated in the MSA and should be clearly defined within the framework of the SOW.

For example, this language may include what acceptance of services looks like , outline the process to change the SOW, or if there are differing rules for termination of an SOW than the MSA itself.

It’s important to clearly define these pieces to understand exactly what each party’s roles on a project entail. If the MSA provides that Company A is responsible for IP/Copyright clearance of materials they provide to Company B, then Company B should make sure it’s clearly written in the SOW what responsibilities, if any, Company B has to provide in IP/Copyright clearance.

By clearly defining the roles of each party, the resulting SOW allows both parties to know exactly what services are being performed and by whom, aligned expectations on deliverables, fees, and timelines.

You've finished your MSA, SOW is signed, invoice has been sent to the brand for payment, you are working. You're done right? Well....not so much.

What we have seen more frequently, with the segregation of agency teams, is a rush to perform services by a team who doesn't know the rules they are supposed to play by. Legal is not just for the lawyers. Every department of an agency is affected by whatever documentation (typically an MSA) has been executed between their agency and their client. (Yes, even creatives). Agency powers, insurance requirements, scope requirements, PO language, production bid specifics, carve outs on third party rights, ability to change or alter brand materials, are just a sampling of what needs to be carried down through the agency in a formalized manner.

It is essential to ensure that as an agency, the promises in the MSA are being met by the team servicing the clients on a day to day basis. Knowledge is power, my friends and will lead to a stronger team and a better end result.

At JRBA we have processes and services available to transition our clients from the MSA into the work. Typically sending around the MSA document is not helpful and leads to wild interpretations. We can help you break down your MSA to disseminate the right information to the right team members as well as creating a process for the agency for long term success. Let's set it up right so you can work independently with confidence!

NDAs are important legal documents that can become complex depending on the language used in them, particularly around which parties they are protecting. Let’s kick off a deeper dive into NDAs with JRBA’s NDA Series:

Mutual vs. One Sided NDA

NDAs can be one sided (unilateral) or mutual (bilateral) depending on if one or both parties are sharing confidential information with the other.

Unilateral NDA

A unilateral NDA should be used in situations where only one party to an NDA is sharing confidential information. A unilateral NDA provides for each party to be defined as a disclosing party (“Discloser”) and receiving information (“Recipient”). It’s important to note that a unilateral NDA only protects the Disclosing party’s information and any inadvertent disclosures by the Recipient of their own confidential information are not protected. Additionally, the obligations to protect any disclosed confidential information rests solely on the Recipient. Including a clearly defined scope of confidential information does aid the Recipient to know what information disclosed requires protection and what does not.

Mutual NDA

A bilateral NDA should be used where both parties are sharing information. In this case each party is both a Discloser and a Recipient. A key difference from unilateral NDAs is that under a bilateral NDA both parties should have the obligation to protect the other party’s disclosed confidential information. A bilateral NDA should clearly outline the scope of confidential information being disclosed by each party and, if properly defined and covered, should impose equal obligations to protect both parties’ disclosed confidential information.

In order to know which type of NDA to execute it is important to consider which party or parties are disclosing information, and what is the scope of information that needs to be protected. It’s important to keep these in mind when consulting with an attorney who will help ensure the NDA adequately serves your needs.

NDA's typically have more than one Term (length of time) that you should be aware of prior to signing. Simply put each NDA has a disclosure term (Term 1) and an additional survival term (Term 2).

Disclosure Term

The Disclosure Term is a standard term for how long an NDA itself is in effect between a recipient and discloser of confidential information and is the timeline governing the protection period of shared confidential information.

Survival Term

The Survival Term is a negotiable obligation that can extend obligations under the NDA beyond the agreement term or Disclosure Term of the agreement. In most cases the Survival Term provides that any confidential information and the obligation to keep any disclosures confidential can extend well beyond the initial agreement term or Disclosure Term.

For example if an NDA has a Disclosure Period of one (1) year, then any information disclosed during the term under an NDA is protected until such term expires, but if the NDA also includes a Survival Term, for example here 10 years subsequent, that confidential information must be protected for a period of ten (10) years after the expiration of the NDA, in reality this places an obligation to protect the disclosing party's confidential information on the recipient for a total of eleven (11) years so long as the information is remains confidential under the terms of the NDA.

As a recipient of confidential information, it's important to understand how the additional term language in an NDA can create an obligation to protect another party's confidential information well beyond the actual business relationship's lifespan.

Ownership and Rights

In an NDA, it’s important to define who owns the information shared. NDA’s and ownership rights are closely linked because an NDA’s purpose is to protect the ownership and control of confidential information.

Typically, the discloser of the confidential information retains their ownership of confidential information, and the receiving party agrees to not claim any ownership or use of any confidential information beyond the agreed purpose of the NDA.

However, it’s important to define who owns the confidential information because if confidential information is disclosed to another party but the NDA states that, “any confidential information shared under this agreement shall be owned by recipient”, the discloser has just given away rights to the information they sought to protect.

To avoid this, clearly define who owns the rights to the confidential information disclosed under an NDA and carve out the intended use (e.g. a business transaction or evaluation a potential opportunity). Clearly defining the ownership and use will allow discloser to retain their ownership and control of any confidential information.

Lastly, when defining ownership, ensure that the discloser maintains ownership and control of their confidential information (even post-NDA), by ensuring there is no post-NDA transfer language. Including language that specifies upon termination of an NDA, the recipient will return or destroy any confidential information reaffirming that discloser retains their exclusive rights to their confidential information.

Any time you or your team plans to enter private property to film content, consider how important it is to have a location agreement! Below are some key considerations that you need to watch out for to ensure that you get all the footage that you need!

Permission

Your location agreement must grant you the right to enter and use the property described! The property should be described so that it is identifiable, the dates that you are granted access need to be specific (potentially with the option to return for any reshooting needed), and anything else that the property owner needs you to know as you enter the location.

Ownership

One of the most important provisions of any location agreement is making sure that you own the footage that you shoot! Be sure that the location agreement isn’t transferring ownership over to the property owner.

Compensation

There may be times where a location will grant you the right to use it for free, but make sure that there is an exchanging of value between the parties to make it a valid contract. A location agreement should clearly state what the cost to use the location will be as well as any potential or additional fees associated with the use. You don’t want to be stuck with any surprises!

Location agreements can contain many provisions, some of which are critcal but easily overlooked when reviewing an agreement. Here are a few provisions to pay special attention to when engaging in a location agreement.

The Owner’s Representations & Warranties:

Your location agreement should confirm that the property owner actually has the authority to grant access and approve filming at the location. This will help protect you if there are other third parties with potential rights in the property. If the other party to the agreement doesn’t own the property, this is something you need to know before filming begins!

Third-Party Intellectual Property on the Property:

Having a location agreement won’t automatically clear everything that you capture on camera. Artwork, signage, trademarks, architectural features, or music at the location may require separate clearance. The agreement should state that the property has cleared all third-party IP. At a minimum, require that the owner identify anything that they have not cleared for filming.

Be Careful of Use Restrictions, Approval Rights, & Crediting:

Watch out for limitations on how footage can be used. If the agreement restricts use to a specific project, or term, that footage may not be reusable for future campaigns. Some location agreements will also include approval rights or require crediting the property or owner, which can significantly limit how your footage is used and shared!

It is important to identify all of these issues upfront so that the footage you capture can be used how you envisioned, both now and in the future!