Many scaling businesses reach a point where they need expert help from agencies in the creative sector to service their brand, advertising, marketing and/or PR needs.
Engaging a creative agency can be a sensible step to help drive business success. But it’s important to get the right framework in place at the start of any such relationship to ensure you get the most out of your investment.
LegalEdge’s Rebecca DeLorenzo has loads of experience working with in-house marketing teams, so shares her dos and don’ts here for engaging a creative agency.
DO:
Have an agreement in place before anyone starts work for you
Set out the commercial terms clearly and how your two teams are expected to work together. Setting this out now will avoid misunderstandings / disputes in the future.
Get advice to ensure you understand the legal implications of the arrangement
For example, is there a TUPE* risk with staff that you’ve worked with at the end of the contract?
* The Transfer of Undertakings (Protection of Employment) Regulations 2006. For more information see CIPD Guide, TUPE Transfers: Guide for People professionals. Note also Hunt v Storm Communications Ltd and others ET/2702546/06 which involved a PR agency.
Be clear about the deliverables you are expecting and how outcomes will be measured
The more detail you can agree around time frames and each party’s responsibilities to provide plans, input, comments, consent etc. the better as it helps avoid a dispute later on.
Set out fees, timelines for payment and how costs are to be managed
…including increases (or decreases). You may want to specify that while fee levels will be reviewed annually there is no obligation to agree an increase.
Identify agency personnel who are key to your project/requirements
What happens if they leave – can you terminate the contract?
Be mindful of your intellectual property rights
… these are valuable! Make sure you have ownership / the right to use (and change) anything created by the agency. An infamous example of this is when Innocent, one of the UK and Europe’s top smoothie brands, lost ownership of its distinctive ‘halo’ logo to the designers who created it.
Think about protecting your brand
For example, can your agency make public statements about your business? If so, you should at least have a say in it/ veto right before they can do so. Is there any sensitivity about your agency working for any of your competitors? If so, make sure you include the necessary terms to prevent this.
Have the ability to terminate your contract quickly
If things do go wrong, you will want the ability to terminate your contract quickly. Make sure you set out practical arrangements for handover such as personnel (TUPE), ownership of IP and creative materials, post-termination non-competes, co-operation with any new agency you appoint, etc.
DON’T:
Sign your agency’s standard contract or terms and conditions without reading it
You’d be surprised how often people do!
Expect instant results
Often the best results come from long-term relationships and building trust between teams.
Take your eye off the ball
Managing performance is an ongoing process not a one-off task. Keep checking results, budgets/costs, etc.
Fail to keep your side of the bargain
Keep communicating and fulfil your obligations on time to get the most out of your agency.
Ignore now what might go wrong in the future
Think about issues that might be problematic (non-compliant advertising / marketing, failure to deliver). Work out what you would want to happen in these circumstances, what sort of compensation you might need from the agency and make sure your contract provides a mechanism for delivering that.
Fail to deal with arrangements for the end of the contract
It won’t be top of your agenda when you start work with a new agency but it’s really important to have a formal exit strategy when you decide to part ways.
How can we help you?
If you need advice on engaging a creative agency for your business, Rebecca can help. Get in touch on info@legaledge.co.uk
