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Episode Four – Protect Your Digital Agency With Proper IP & Contracts…

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Then you look at them in detail once, twice a year. Then they go away and draw, and then you do the work and you cheque them every now and again. And if they? Work as they’re intended to if you fall. Out with each other. There’s a way to resolve a dispute. If you’ve not got paid, then you can down tools and they’ll and you’ll be able to explain why and not end up getting sued by the client. It’s insurance policy. I mean the the the problem with lawyers is we are emotional ******* who think we’re the most important people in the room, and we never are. We overcharge sometimes and assume that the world owes us living. I am a hugely frustrated creative wish. I could do 1% of the work that my clients. I do, but that means that I’m very lucky that I can get passionate about this kind of stuff and passionate about keeping clients and work with around for years to come. And one of the facts behind that is to make sure you got. The right agreements in place.ย 

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And and I think so from from the perspective of coming previously running digital agencies and now working with agency leaders myself, I think one of the one of the one of the things that is it’s the hardest part I guess is kind of. Realising that you don’t know what you don’t know and that’s across many different areas of running a business, but realising the the true long term impact of these sorts of things. OK, a couple of clients, they’re they’re gonna be problems or you’re gonna have some, some kind of legal need or recourse over the course of running an. See. But just think you know, like you say, you wanna get some. Funding or you? Wanna sell? Someone’s gonna need to know that you’ve got clients in a retainer that are locked in to the right levels without locking, locking them in in the negative sense. And I think, you know, there’s there’s quite. A lot around. That, that, that can be quite bewildering to some people especially. For me, I hate it. I hate massive sheets of paper. I hate loads of detail and and and I and I think that quite a lot of creative E type people who who run digital agencies often end up looking at. That go well. That’s a lot of boring text. It’s. Probably fine leaving it at that. So in today’s webinar, we’re gonna. Go through quite a few bits and bobs. You know what’s new, what’s trending in the in asset trending, mate? I’m sorry, what’s trending in the legal sense of the word? Not in the in the front sense of the word, you. Won’t find any. Of these hashtags on Twitter, I’m afraid guys. But yet what’s trending? We’re gonna talk about something new to me, and I’ll let you talk about that in a minute. The assets 24. Thing, never heard of that term or phrase, so I’m really excited for you to talk all about that. We’ll talk about NDA’s. You can talk about the value and the necessity of contracts and things like that, and I think along the way, I’m sure there’ll be a few questions and we can we can take those as we go and we can, you know, see what, see what, what shakes out. So you happy to. To kick off Steve with.ย 

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Essentially, tell us what’s trending, what’s new? Sorry as a as, as a marketer, I’m not a bad lawyer, so when I say what’s trending, it’s there’s a list we we’re gonna share some slides after the fact, and there’s a list of. Stuff that I come across again and again and again. And some of them are fairly Evergreen issues. Some of them have been identified and amplified by the pandemic. But what we’re seeing, I mean in the NW, we’ve got a real skills issue. So there are. Always going to be discussions around what agencies do to maintain a culture, and certainly when you may be bringing in big egos and big personalities and all of a sudden it’s not just three. Ride around the desk anymore and skills and talent retention. Again, we have a really big problem in Manchester with devs and the like. Walking across the street from one business. To another for another 1000 pounds. And we see an awful lot of other agencies. Working with freelance resources because they need them. Very often not get them signed up to the right terms, whether on the understanding or which leads to issues that around the fact that they’ll build something. We will think we can give that IP to our clients if that’s what we want to do, but it’s. Actually can’t. There is loads of M and. A going on or? At least there was a load of. M&A going on, I think it’s. The gas.ย 

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I’m seeing a lot of conversation with other agency leaders at the minute around, you know, team they’re calling, calling it, teaming up. So if you’re talking about teaming up and you’re listening to this right now, that’s essentially an MA.ย 

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Absolutely, yeah. And then there’s an awful there’s a lot of consolidation. There’s been talk about that for years and years, we’ve seen some bigger agencies look to fill in gaps in their value chain and filling gaps in their, their their supply chain before now and swallowed up a few smaller ones.ย 

Speakerย 

And then.ย 

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Media come in Manchester was a really good example of that when they bought up cheap and bell and Coke and Peter love and there’s other ones around the country. Yet, but I think part of the the reason behind that is we’re starting to see people at the top of agencies. And this will get in. We’ll get into this in a second. We’ll talk about 24 assets, move away from working. In the business to moving to working on the business, taking more of a strategic role, bringing somebody up to to act as the new MD and then figuring out what they want to do to you know, prolong their their own enjoyment. I was gonna say pull on their own life, but that’s a different webinar. You know, to, to, to. To get out of just being on the tools every day and. Then thinking about what’s their exit. Who? Why do they want to scale? Where do they see this? Go into the course the next five years. And we say to a lot of people who do that, OK, what are you going to do on day one after you’ve sold, you know when you go? From there, what’s gonna keep you passionate? What’s the next thing you gonna do? Contracts. There are always, always, always issues around. Contracts because it. Is normally when a project goes wrong. Normally we see contracts that don’t have the detail in that you would need them to and I’m not talking about something needs to be 50 pages long. Time. But that just deals with the specifics so that if there is a problem, you’ve got a way through it that monthly way to recover that relationship debt recovery, if you are working with clients who feel the squeeze where you might think you’re on a 30 day payment run. They’ll try and make it 60 or 90 or over 30 days, and then another another 14 or whatever. So that’s always always an issue. The name of the podcast. We’ve also got an office dog. You know, we’ve also now suddenly got statements office. We want to find some unconverted meal and then convert it and stick neon all over the wall and. Assume that that’s going to create a culture, not necessarily, but property is always an issue and it can be a bit more of a complicated conversation. When you go into that kind of building regulation, big issue. I’m not going to say. What I’m gonna have to say it now GDPR was is now the UK GDPR and the Advertising Standards Authority is is very, very active and always has been. And and there’s they’re get a bit more interventionist in terms of campaign work and you’ve got privacy law changes coming down from the EU and the fact that data protection is being reformed. Again. So it’s gonna look different than it was, you know, when everybody thought that their their agency was gonna fall into the sea and everything set on fire. When GDPR came in so there’s lots of stuff going on, some of it you see all the time, some of it I think is is. Sign of the times, but. A. A book that was introduced to me ages ago in the fact an author was introduced to me ages ago was Daniel Priestley, Australian entrepreneur and and wrote a book called and Besides some others that written about oh written read about agency life. 24 assets really stuck out to me. He’s written four or five books, but he talks about the assets that you need within your business. To make it successful to make it scalable to make it. Sustainable. And so we can run through the list as quickly as I can do. So content in that once you create it cost nothing to protect. We’ll get into that and. Talk about IP later. Do you give it away? Too easily and. You menology. Now that’s a really interesting discussion when you’re in the agency world, your methodology, what’s that worth? How do you exploit it? How do you? Sell it. How?ย 

Speakerย 

What’s your?ย 

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Do you wanna learn it? You use it. For the people, your IP rights, whether that’s. Registered or unregistered? Again, we’ll get to that. Your philosophy and your identity and your values. There’s an awful lot of businesses doing an awful lot of work around that, but I think in the the age of people wanting to know about the heart and soul of who they’re doing business with, it’s more relevant than it’s ever been. Ambassadors. How do you reward them? How do you keep them engaged? Which ambassadors do you wanna be going for? Your positioning? How do you get? And how do you defend your? Foothold in the market. Which third party channels are you using to tell your story? And can you develop your own which terms apply? Do you want to be using client work? For example to help tell your story and do your contracts allow you. To do that because that. That’s something that comes up again and again and again. We did a great piece of work, one stick it into some creds or we want to stick it into an awards entry. Look at the contracts. Figure out. Well, you can’t share any details of anything you’ve done with us because of confidential. See wording and.ย 

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You get into a situation where someone in the business says it’s OK to do it, then goes live and it turns out that it wasn’t OK to do. And that’s I’ve seen. That very recently, where a great case study goes live in like half an hour, it’s and it’s gone. It just it it just disappeared into the ether. So always make sure. That it’s in the contract before you put it live.ย 

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No, exactly. And if you’ve transferred IP ownership to the client, that’s theirs and not yours, and you can’t share it without their permission. So not only is it potentially a breach of the confidentiality terms of the contract, it’s an IP infringement as well. Data. What do you own? Do you really need it? Are you compliant? It’s an asset, but it’s an asset that you need to feed, worse properly, and also be aware of the risk of it. If you’re holding really old databases for real long periods of time without any good reason, then the chances are something’s gonna go wrong. You know, contact someone that doesn’t expect to be and next thing you know, someone complained to the Ato. That’s all. That’s much more risking used. Products. Now what can you give away? What can you monetise? We are for years and years and years I’ve worked with agencies and have the discussion around. Can you build something of your own that you can licence as opposed to just doing work that clients and opponent? That’s again a pretty Evergreen discussion, but we are seeing a lot of people. Moving towards that. Marketing your operational systems, your culture again, how do you build a culture? Well, it’s about how businesses look and feel, but also it’s underpinned, believe it or not, through contracts through your policies and procedures, your vision, because that that all helps. That underpin your values and your strategy and how you recognise and reward key people of influence within the business. You may have some big personalities. They may have, for example, more followers on social than the business does. How do? You make sure. That you’re leveraging the best out of them and. They’re doing the. Best out of you and how do you keep them? Engaged. What you’re looking to do. Your technical resource, how do you keep people in the business without walking across the street? Your business plan because that helps you execute your vision. That’s really, really important when you are looking to to. And when either someone you’re looking to buy some looking to buy you or an investor wants to know how you’ve got to get where you are and where you’re going for the next five years, your business plan and valuation, again, that’s justified by your contracts, your products and your other assets because it shows what you’re worth your structure because your structure is going. To help you. Either scale or manage your way to growth, or ideally it will, you know, are your fans all on board? Have you got the right people in decision making positions? The business and risk mitigation. So when there is a problem, this is where the dual legal stuff that you’ve spent a bit of time on in advance really comes into its own and it’s where the investment in that time and that expense really gets justified.ย 

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Yeah. So question on this, these say 24 assets that’s let’s say that that’s like an entire shopping list of stuff to to work on, call you, you go through the list. Let’s pretend that that it is that simple, you. Go through the list, done it, done it, done it. And by the sounds of it quite. A lot of that stuff are things that you you don’t. It’s not one and done. You don’t start it and say OK completed the the methodology, it’s now an asset and you have to kind of own it, keep refining it and and presumably because. The methodology is relatively woolly, most of the time, you know it’s not something that in a methodology become in digital marketing digital agency. Land uh becomes very uh out of date very quickly if something changes, but if something is like if you’re working on it as if it were a physical physical asset is that in my head I’m thinking that list of stuff. If you pretend that you’re building. Something physical as a physical asset, those those kind of slot into the same kind of. Thinking you know, if you’re gonna sell. The agency or or? Bring someone in or get investment, or do in M&A. Those are things that should be included in the valuation is that? Is that right?ย 

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Every single time, every single time. So when. We get to talk about IP. And it can be bought and sold just like a. Physical asset. OK. And it it needs to be defended. It needs to be developed uh, to be worth what you expect it to be. Very often, yeah. As as I say, it’s. A move away from working in the business to on the business and I think anybody who just says right, we’ve got it figured out. Now you know before there’s a change in, say, Facebook’s policies. That means we need to completely pivot the way we deal with whatever we do for clients on Facebook as a. Awful. You know, it’s it’s hubris and it’s dangerous. And I’m not suggesting that you should be looking at it every single day, but it absolutely it’s something that you need to feel feed and water. Otherwise it’s gonna crumble. Otherwise, it’s gonna be obsolete, and we all know obsolete tech, obsolete methodology is really difficult to plug in somebody else’s.ย 

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Yeah, and and and the interesting from from so. I’m just, I feel. Like I’m pushing on this a little bit. So in the sense of. Every every time I’ve I’ve spoken to an agency owner around valuation or around the sale or the merger or of their of their agency. We we’ve gone through. Various rounds with various different potential buyers and. Things like that and. Is it a case that potentially quite a lot of buyers on the on the lower end of? The scale not. Talking like the media comes of well, for example, because I know that they’ll have a lot, lot more experience. Say around this. Sort of thing, but when I’m seeing agencies of, say, 1015 people, rough size being bought. Very infrequently do you see that the the in the in the process of the valuation that those sorts of things are considered. So it’s probably a really important thing if you’re running a mid ish sized agency and you’re going through that early stages of of a sale to to to speak to, someone to try and value some of these assets that aren’t. Is it all tangible in in your hand?ย 

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Absolutely. I mean your accountant, besides your lawyer is. One of the most important peoples having your speed dial. And they’re going to be able to tell you what. The business is worth at the very least, theoretically. But where things get harder to value, and when you’re talking about brand and culture and everything that comes behind it, culture isn’t something that you can, apart from the fact that you can show that people have stuck with the business for years and years. But I IP’s really difficult because you don’t know. What goodwill say is attached to a brand, apart from the fact that you can say the business has made this much money while this. Brand has been. In place and. It’s really hard to put a number on Halo. And it’s really hard to put a number on, say, a product that you developed that you don’t necessarily know the audience. For just yet. More often than not, IP can be valued along the lines of potential, and there are really very few experts who will be able to help you do that. There are ways to do it. There are some that your accountants. Run through with you. But I think the danger as well is. That if you are spending all your time. Spending all that money to get. To a valuation I. Think if you. Are working it then then it becomes a. Bit of a. A monument to futility if you at least are aware of the fact that you’re building something that has a value and can get to a stage where you’ve got an idea of what that number is. At the very least, roughly then you’ll know a bit where you are. You’re more about where you are, you’ll know a bit more where you are. In terms of your growth journey and whether or not you you’re ready? To sell, whether. You’re looking to sell and more importantly, you know what you may be worth to somebody else, or what your relative strength might be when you’re handed a discussion with. Somebody about whether or not you.ย 

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I I could talk. I I know I. Said at the very beginning of this, that. This is way. Beyond me and all that stuff, I could talk about this for ages because I absolutely I it’s. It’s a fascinating concept to try and put a value on something which is technically intangible and also talking about something in the future. Absolutely brilliant, but you. You must remember the first rule of Fight Club. So let’s talk a bit about NDA’s, because I I I’ve almost every engagement has one it, whether it be in the final contract or whether it be during the discovery phase or anything like that and. I don’t think there’s ever a time where they’re probably more needed than in in a from a digital agency perspective, in many centres cause like there’s a lot of IP, but you kind of have to if you’re pitching for a project, you have to see clients data, get access to their stuff, but also you have to show what you do and that’s kind of. Show open the book, show you methodology, you know and and. And and I always found that that piece is. If you’re, if you’re pitching to people who who know that they’ve been through this dance before, then then they’re usually fine. But early doors getting the right way of doing it. I know there’s like there’s different versions of NDA’s and things like that. So it’d be really. Good to to, to kind of unpack that a bit.ย 

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No, of course. So it’s. More often than not now. It’s the first step in the discussion. You will be talking to a really exciting client. They will be convinced that they’re about to disclose information to you that if it gets out to the wider world then the earth will fall in on itself. But equally, they are coming to you for advice. And because they see the potential value in. What you do so there is a real. There’s a real exchange. You know, businesses that you are looking to partner with clients that you looking to work for. We’ll probably say, well, we’re taking the bigger risk because we’re exposing what could be pretty business critical information to you. We don’t know you that well and we need to know that you take care of it. Which works if you’re asking for the clients, but as I say, they are coming to you for advice and. What they’ll get. From the beginning, what’s going to impress them is going to be your creativity are gonna be the ideas you come up with and. If, say, you are disclosing mockups or wireframes or first draughts of content. Even software, anything else like that, that’s all protectable as a separate IP, right? That most of that is protectable by copyright, potentially bypassing off my trade. As well, but if it’s just information that has a value that doesn’t easily fit into a basket, it becomes confidential information. Confidential information is on the protectable legally, where it has some kind of commercial value, and what they call the quality of confidence and where it’s disclosed to somebody else in a situation that suggests that there should be. An obligation of confidence, now that can sometimes be really obvious from the context to something, but the reason you send Ndas and receive them is so that you’ve got all of the obligations that you need from the other side in terms of confidentiality in one place. And then if you end up falling out with each other, you can say well this. Obviously was confidential, even if. You don’t sign their NDA or they don’t sign yours. Sending that a loan is normally going to be enough to show that you’ve got confidential information that can be protected, and you then that within that document is going to be something called the purpose. That’s going to say this is the reason why I’m disclosing or receiving confidential information from you. You. Make any use. Of that beyond that purpose, then potentially we can suit you.ย 

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And and and I presume in the professional sense, even though, like you say, 1 might not be signed even if one isn’t necessarily sent immediately, there’s still gonna be a bit of an exchange. And and there’s a kind of an implicit understanding that that that you’re going down a path which would normally include one of these kinds of agreements. And if you then get to the last hurdle of contract or the last hurdle of onboarding a client and. It all falls. Through you are kind of bound by it. Or would it be harder to? Fight or argue or.ย 

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Well, I mean, if the the idea would be you’ve got your NDA. If you then enter into a further agreement with the client where you’re actually do some work with them over a period of time, you won the work you won the pitch and then that NDA will normally fall away and there’ll be confidentiality wording in the new agreement. This is for the gap between that first conversation, you know, meeting the hotel bar and then leaving for a bedroom somewhere in the crew. Just. It’s possible and it it sets the tone and I think as well it sets the tone in terms of confidentiality, but I think it does in professionalism as well. If you are saying to clients that you’re talking to, you know, say if you would send them your Enda first, you are telling them. That you’re giving give them something of value. And I think it helps to set ground rules from a really, really early stage.ย 

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So quick question that’s come up on Twitter from Charlie. Hello, Charlie. How enforceable are they like? How like let’s say I took a pitch from from your agency.ย 

Speakerย 

Hi, Charlie.ย 

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You gave me a road map of. How you were going to deliver something you. Said it was kind of like your secret. Source how? Why you’re such a good agency then I said no thanks. But I took the pitch, took the strategy that you did and then brought it in house anyway. What was what’s the how?ย 

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What? What, what?ย 

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What have I got in my arsenal to enforce it? Or likewise the opposite way round?ย 

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Well, you’ve got a an audit trail to show what you send and under what terms confidentiality. Confidential information cases are pretty rare. The thing about. Getting an NDA signed. If you can do, is that if somebody uses the information or whatever you exchange between each other for something outside the purpose that I mentioned earlier and that causes. A loss. You know you’ve lost an amount of money then that’s a breach of contract as well as misuse of confidential information. And it is kind of the same discussion around how enforceable our contracts sometimes very sadly the. Answer to that question is. It depends upon the budget you’ve got to pursue them and it depends on what you want that relationship to be going forward. But it is at the very least a foundation. It is at the very, very least, an opportunity to be able to have that fight as opposed to just, you know, know that all the work you’ve done in selecting a client that you know is going. To be good for you to pitch. Or you know where you where? You’ve sense checked whether or not this is worth your time. Knowing that the picture in of itself is probably going to be about as much work as any other small project would be, knowing that you’re gonna get some kind of return out of that. And knowing that this is not just an excuse for a client to get you in, take your ideas and then hand them off to someone else within their own.ย 

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I I’m guessing and you’re you’re you’re. This will almost be it. Really. Yeah. Hopefully, yes. No answer. So let’s say I’m we’re doing. We’re going through a process. I then leave the company that you’re pitching to, but I’m bound by an NDA with my own contract that I have as an employee from an employee. Point of view. Who’s who, who’s NAAFI breached or?ย 

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Potentially both. So you will have a duty confidentiality to your employer if you’re an employee, your employment contract will have confidentiality wording in it anyway, and within the NDA between the business and the client that will cover what happens if employees breach the NDA. As opposed to the business as a whole. So say somebody leaves a load of pitch information that can or you know client data that. Thing in the first instance, it’s the businesses problem, but then the. Business would come after whoever’s. Left to try and contain the issue and to try and enforce the terms of their employment contract, you know, and it’s not just get and the confidentiality.ย 

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This is how you lawyers make so much money because it’s like 4. I’m just counting in my head. There’s like 4 different. Lawyers there. At one point.ย 

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I mean no, but but it. It’s the, it’s the thing. About confidential information. In particular is. Once it’s out, it’s out. You’ve it it if it once, it loses the the quality of confidence, then it’s less. It’s a depreciating asset that you won’t want to spend money on trying to. Whereas as opposed to if you’re creating content, copyright comes into comes into existence the moment that you record an idea in a permanent form that’s original and you are protected for a certain amount of time automatically. You know, you don’t need to go away and register anything else like that once confidential information is out to the wider world. Normally, confidentiality cases tend to revolve around injunctions where a business is trying to stop that information getting out and to get an order restraining somebody from sharing it. It’s pretty rare that anyone will then try and spend money trying to put the genie back into the bottle, but if you’ve got a wider dispute between two businesses, it becomes a pretty important. Topic of discussion.ย 

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Got it. And and and and. It sort of neatly brings us into the next part of this conversation, and I I you may well have seen, I know you definitely saw Steve a, an there there there was a a Twitter thread a couple of weeks ago where weren’t named them. Just in case I have to speak to. Steve’s counterpart, but they were essentially suggesting. That contracts are only in existence to lock people into something because you’re not good enough to keep them as a client, and the only reason you would have a contract is because you’ve managed to dupe them into signing up and therefore you keep them for a. Year now. My feeling on this is that having experienced two different digital agencies with several different layers around how, where, how and where contracts go, contracts are absolutely essential and having the right contract is real. Important not having a contract at all suggests that there’s not an and not an NDA, but there’s also not a like a. A common thread of of promises that that you know, even down to payment terms and things like that. So don’t let anyone tell you they don’t matter. Is is my. Bit of advice I I know that there’s a lot to balance in them as well, especially in the in the digital age. So what what’s your kind of? Taking advice on on from a contract perspective.ย 

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Well, that sat what you described. The Twitter thread sounds like a manifesto for. Good account management. And good, good account management is is great and when that fails, you will need a road map for what happens as and when. Well, that and the point behind the contract is if you’re in business, it’s presumed that you’re in a contract. If you have the elements of contract, so you’ve got an offer to provide services and acceptance and intention to create legal relations, there’s some kind of consideration. You know, there’s there’s payments or a reciprocal obligation. Between the two. Of you and the certainty of terms, and then you’re in a contract and the cases say, yeah, and I think I’ve got all the elements of the contract there, but they’re in the slide just in case I missed one, I should know them. I’ve not had enough coffee today, but the basic terms of any kind of contract, even if you don’t have one that’s in writing there we go fourth level. 5th it was going. I’ve got a thought that I thought that was me putting in some kind of Zen guide there for a moment, but there we are. It’s the the point about them is the general position. Fair day’s work. Fair day’s pay. You do some work, you get paid for it, right? Well, what about scope creep? What happens when a client says to you? OK, we really like this. Can you just add this to the contract? You know and. You say? Well, hold on a minute. The original agreement doesn’t provide for that. So how do you know we gonna get paid for it? Where’s that in writing? What do you do about your metrics? You know, how is success measured? Are we talking about, say, your normal CEO kind of metrics you’re talking about paid social? Is it just views? Is it shares whatever else where it gets really interesting? What about your actual obligation to what the client expect from you? If you haven’t got that set out in the contract of your own, then it’s to use reasonable. And care to.ย 

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Do the job.ย 

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Properly, but do they need you to comply with their policies? Do they need you to work in a particular way? And the flip side of. That is, what do you need. From the client, you need them to cooperate with you. You need them to give you access to their systems if you need it, you need them to give their access to your people and their information. You need them to come back to you and give you sign off within a reasonable amount of time. Otherwise, you can’t complete projects as they expect to or you can’t hit the marks you. Say you’re gonna hit. Interestingly, what happens if you’re down tools? So if you haven’t paid, you’re six months into total contract. Client isn’t paying you, you threaten to walk away and they say, well, hold on a minute. Your time into a 12 month agreement that’s going to be a breach of contract any and potentially it could be the way around that is to have a term in your agreement that says if we’re not paid for a certain amount of time, then we. Are able to down tools and that’s set out in the contract itself. And more fundamentally.ย 

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That. That, that’s, that’s that’s something that will become probably more of a requirement in terms of being aware of this if you’re if you’re thinking about your. Contracts right now. Have a look at your contracts to make. Sure that they’ve got those sorts of clauses. Because sadly, with money being, uh, tighter across most of the world right now and there are going to be instances where clients with all the best interest in the world probably can’t pay or pay on time and being a good person about it and and and having some flexibility is important. But you need to protect your own business. And and you know the OG is in the business of helping agencies run their business. And and I would, it would be really bad to see that kind of flexibility then turning into cash flow problems for you, the agency owner. So make sure that you’ve got that flexibility available, but. Have it contracted that there’s a there’s a hardline, you know, X amount of time means this because that will protect you. And it’s kind of both sides of the of the coin there one, one thing I’ve noticed in the last few years actually. Is quite a lot of. Digital agency contracts have moved away from results to deliverables, so it’ll be something like on the 1st week of the month you will have a report which includes the these bits of data. You will also. Receive X amount of Y things instead of. Previously it was. We were. We will increase your traffic by 25% year over year or something like that. That’s super hard to do. Sorry. Super hard to promise and and very hard to deliver if things don’t go well externally to what you’re delivering.ย 

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Well, yeah, absolutely. But at least if you get those reports, you’ve got something tangible as opposed to. You know, like you say, we’re going. We’re going. To get you to, well, we’re. Going to, we’re going to increase sales by 25% through through SEO or PPC, something like that you know?ย 

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Very hard to move.ย 

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No, it it is and and the way you and you can have analytics reports all day long that will try and help you make that case. But equally, I think some of the bigger clients will expect that kind. Of reporting now. Because they will be far less willing to give you 3 or four months to get to a point where you’ve uplifted traffic. They will want to know what you’re doing. In the meantime, they’ll want to get into the granularity of it so that they can show even if, you know, say, after three months, if you needed them to be in a relationship 6 to 9 months to get the. Full value or to understand the full value of what you do to see a real impact, then you’ve at least got something to back up the work that you’ve done, and the only other way to do that would be through you have time sheets, other kinds of MI. But certainly when you working with bigger clients, they will expect that now. And as you say it’s. If if a. If a brand the the worth of a brand is hard to value unless you’re Disney or Apple or Samsung, you’re placing that is sometimes is difficult to justify. So at the very least, if you can show that you’re working, you’re providing that service, then it seems dull. It’s not the secret sauce, but it’s the kind of thing that is going to help to get you. Right.ย 

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Yeah, and and and and and this is, it goes both ways. Obviously you want to produce what you’re what you’re what you’re selling to clients because that’s how you keep in business, you get more referrals and things like that. One thing which. Which I I I feel like I bang on about an awful lot and so I one of the things I do with a lot of agency. Leaders help build a plan. And for growth part of that plan is their marketing and their sales funnel and everything along those lines. Now one of the. Things that that. Irks me hugely. Is these incredibly lengthily massively prestigious contracts that are they are. They are covering every base that could possibly ever happen. Under the Sun, 20 pages long and it’s only one page where there’s a signature kind of thing, and the only bits that ever changed in it is the company name, the service deliverables, the price and the date and the the I notice when. That is much better written and not just shorter but much better written so that it’s so easy to understand what. You’re agreeing to. The conversion rate at that final hurdle is significantly higher. So you’ve gone. To all that effort to. Market to get leads in to then do a. Huge amount of effort to. Pitch and go through the. The lovely, you know, hand holding phase and and get the sale to lose it because you’ve given someone something which has been essentially downloaded and and and. And frankensteined off the Internet, where is the balance, do you think? Where’s the what? What is the right balance?ย 

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You see, I think a lot of this sometimes comes down comes down to. Growing up in. Public you may be working in agency that’s had a five page agreement. That has worked for years and years and. Years, and then all of a sudden you get big Pharma client. That walks in through the. Door and expects more detail and this has happened to load my clients plenty of. Times and then give you 100 page. Contract and you realise that there there are just big gaps. In terms of what you’re what you cover and in the agreement itself, and I think the part of the issue is that the way you provide services and the way results are measured, we just talked about it then can be really different across different service lines you provide. So for example, what will look like a good result in an SEO agreement or a PPC agreement or a paid social agreement any other? Kind of paid media. And is going to be measured very differently from acceptance testing on build the website or an app. You know, how do you get to a point where the client is happy in either can be very different, and if you really want to offer. All of those. Services in one document then that’s where. Contracts do get. Uhm, but the a lot of what you see in them is boilerplate stuff, you know, common wording that you see every single time, but not every contact needs to be that long. You can then do this kind of thing through terms and conditions. You can have, say, an order form, a project proposal tied into. A project plan so that you’ve got more detail around how this is going to work commercially and. And and you know, they contracts at the end of the day, do not need to be in writing. They can be oral and they do not need to be in one document. They can be an e-mail, but the problem is where you start to have problems is that you. Have to sift through all those previous conversations to get. Of what’s really, really, really hard.ย 

Speakerย 

Right.ย 

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And and sometimes this balance needs. To be struck like you, you know where you. Have lots and lots of wording that’s relatively boilerplate, but. You also need to make sure that anything you’ve actually promised is either included in it or has been excluded from it. Depending on where that conversation went, you know, I I I’ve I I’ve been in meetings this week with an agency. Who they, they’re in a bit of a pickle at the minute. And probably end up talking. To you, at some point where they promised things. In meetings face to face and it’s then kind of been forgotten to add to the to the these statement of work which is an underpinning factor of the contract. Now they’re delivering what’s in their statement. Of work because. The owner has gone in and done the pitching and all of the agreements and all the blah blah. And the the delivery. Has been passed on to someone else who’s got a statement of work which doesn’t match. What all the? Promises are and the balance that isn’t met is usually then, because sadly the human has caused the problem, not just the sales process or the contract. Being 10,000 pages and I guess. Is it reasonable then to say and I don’t wanna put words in your mouth because I. Might be totally wrong. Here have a. Versions of your contract which are. I’m a. I’m a I’m working with an SME who’s on a. ยฃ3000 a month contract versus I’m working with Big Pharma on a ยฃ30,000 a month contract because. I’m putting myself into the into the small clients perspective. If I get a 20 page contract, I’m gonna start thinking hang on a minute. What are they trying to get one? Over on me. Or something, whereas big. Big company is gonna think the exact same thing, but the opposite way round. If the contract’s too.ย 

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Small, big companies are going to demand the land contract from you anyway, and more often they would try and give you theirs. Yeah. And what the the situation you described before? Can actually be sorted out through and that’s a really an example of where a contract can work for you. So one of the boilerplate clauses that I mentioned earlier in a contract is something called the entire agreement, which says that whatever discussions we’ve had previously, whatever presentations you’ve had, whatever else, whatever marketing material you’ve had anything in e-mail, everything we’ve talked about. Does not count only what is in this agreement and this statement. Of work does. So in that kind of situation. You know that that’s your fall back. And if they’ve signed up something. That has that. In then you know they might have a bit of of an ethical or a moral argument, but a legal one is a little bit different. So that’s.ย 

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Mine though, sorry to put put sorry. What? How? How does that become a breach? How? Do you get into the? State stage where I’ve agreed something in a in a face to face meeting. It’s not written down. There’s no meeting minutes, but I know I’ve promised I I’ve been promised this thing. I’m now saying I don’t recall any of this conversation and. It’s not in the scope. Of work is that would talk to me. What’s a how? Was a breach. What is a breach? Of contract, first of all.ย 

Speakerย 

Well, how that? After you.ย 

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Prove it.ย 

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Well, so. Just just one point of account on the page long thing. In a perfect world, you would have what’s called a framework agreement for most clients to asset sees and sees where you on board them, you deal with all the contractual stuff once and then the rest of your time and your energy is spent working on staying. Work because you’ve onboarded them. It feels a bit more corporate than otherwise. It would be, but that that’s a way. To do it so. That you can then spend your. Time working on the actual project itself. You end up in breach of contract when you don’t. Stick to the terms one. Basically, when you fail to perform your obligations accordance with the terms now, not every breach is catastrophic. Some minor some can be put right and an awful lot of conduct pretty much every contract I draught will say if there is a problem then you need to tell us and we get 28 days to try and put it right or. Longer if you can arrange for that, you will be put on notice, and then you will come up with a way of solving the. Some breaches are a bit more serious than that. They’re what’s called material and can justify the termination you bring in certain circumstances and some of what they call repudiatory. Which is where you’ve. Got a breach? That goes right to the heart of your relationship and allows you to walk away from. The whole thing now if you are in breach or what do you get if you’re? In breach you. Get damages. If you were to. Go all the. Way to the. Conwyn that put you back in the position you’d been in? Have the breach not taking place. You will normally get interest on top of that sum and you can specify that rate of interest within your agreement. More often than not, it’s tied to a percentage of a base rate of whatever bank. Use and if you win in court, of course you will end up with getting your legal costs back if you’re the winner, or at least 60 to 70% of them. You never make money on. Litigation and unfortunately that’s that’s never. Sorry, you don’t. Well, but sorry. OK, lawyers do.ย 

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Yeah, there we go.ย 

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None of the. Parties in litigation make money on litigation apart from. Very, very rare. Now, if of course you don’t end up with a claim that’s worth less. Than 10,000. Pounds. Then you’re in the small claims track at court, which means that you can’t recover your legal costs from your side, and they can’t recover it from you. And you should be able to deal. With this dispute yourself. And a lot of contracts may fall below that and certainly things like money claim online have made it a lot easier to pursue claims than otherwise. But it’s important to. Remember, you know you’re not just talking about legal costs when you’re in dispute or in you’re in breach. There’s management time that goes along with that, and there’s the emotional investment that you. Put into it as well and management time is very, very difficult. To recover. More importantly, if you’re in an agreement and someone says you’re in breach at a certain point, it can be really hard to get that relationship back on track. But.ย 

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It’s not possible.ย 

Speakerย 

I think.ย 

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Something that popped. Into my head just now and it and and maybe maybe this is harder to kind of stomach. If you’re running an agency, you really want the sale, but the gut says something’s not gonna go right. I would caution against getting that contract signed and trying to work out whether or not it actually will work out, because it’s probably based on all the stuff you’re saying in terms of cost and time and everything, it’s probably quite. Expensive to deal with? A dispute it’s, and it’s probably more painful if you kind of felt like it might have. Not gone so well before you start.ย 

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Absolutely. And say you’re working with a foreign client. That you would then have to pursue in their home country, even though you can say your contract subject to UK law, UK courts, UK jurisdiction and and it I’ve seen it happen with clients where you will be working for what looks like a really, really good entrance into the UK market that then cynically just stick to the minimum term of their contract or they’ll decide they don’t like you and serve notice of termination on day one and you only. Get three months in search.ย 

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Yeah, I’m. I’m working with an agency right now where that exact thing has happened. They.ย 

Speakerย 

The the, the, the.ย 

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During the pitching process, the the potential client said, hey, we just really, we just want the strategy. We wanna do it on our own and the guy was like, no, it’s not the pitch. This is what it is. They actually sold it and. Three to the 12 month term day one handed in the notice, which coincided with the delivery date of the. Strategy and there’s nothing they can do and they put all this effort and time and energy and money into it and it’s cross jurisdictional as well. So it’s gonna take even more time to go and get that money from the other where I don’t know where else it’s from. But you know and and and it and and this is just coincided perfectly with. The question from Aaron. Which is how many agencies? That you work with, Steve, actually have figured any of this? Figured it all out because. There’s the assets thing, which is really, really important and and that’s a long term on the business. You gotta think about it. You’ve gotta really dedicate time and effort and protecting it, but also building it. And then you’ve. Got NDA’s and making sure they’re the right thing and you’ve got the right type of contract. The right length contract. You’ve got all the terms in the contract, the. Length of the contract. The short and and then you’ve got to think about. All these painful. Things that could go wrong as well. How many agencies have got?ย 

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This right, and there’s plenty that realise they need to get it right, but find the process of getting. There really painful. That will have contracts drafted that work for them, and then when the big shiny client walks in. That promises than the world they’re willing to ditch their own sense of work to the client. And I think what? We what we. Saw in COVID. Was not so much businesses going to the wall, but projects getting cancelled. And then all of a sudden, a great number of agency owners saying, right, OK, now is the time to try and get this figured out, but I would not. Assume that, yeah, the people watching this webinar are in the minority, that they haven’t got this exactly where they need to be. You know, there’s there’s saying in data protection. Because everybody loves a good day to protect you. Out though, right? There’s a saying that you will never get to 100% compliance because you won’t, you know, business changes, law changes, life changes, and you need to keep pace with that as as best you can. And I think there’s a much more understanding now that it is worth spending time on, but I think. Getting from the start of that exercise to the end of it can be a. Little bit different. When you’re willing to put some time aside to start the process and then a job comes in. And that job has your attention, has your passion, and suddenly the stuff that you’ve thought is really important bedrock your business is just something that you get to between projects. You know, lawyers. Will always say. Marketing is what happens between actual work and agency owners will say the other way around. You know, legal is what happens between actual marketing. They’re getting it right.ย 

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There is super hard without the and I’m not plugged. Trying to plug your services except I am. It’s really. Really hard to. To get anything right that you don’t fully understand, knowing that you need to work on it is absolutely something that you can work out without. Some advice? I’ve know there’s there’s a lot of kind of gung ho attitude in digital marketing digital agency space, but as a business grows, you start to realise what you need to protect. And I think the second you have that scratch in the back of your head that says I’ve got to keep an eye on this. I’ve gotta protect the people that I employ. I’ve gotta protect the people I work for. I’ve gotta protect the stuff I’m building. All this time I’m putting in an energy and money and. As soon as you start. To question that that’s when genuinely like you said, you got your accountant on speed dial. Get a lawyer that you can have on speed dial because I think. Even if it’s a case of like, OK, I’ve not updated my contracts for the last year or two. Do I need to? I have no idea do I need? I’ve got an NDA that’s that’s four years old and I’ve just started a new engagement with the same company and they’ve come back. Do I do I need a new NDA? Is it still valid that stuff? You can Google that, but you’re looking at an Internet. All of this information, as we all know, so get like, get someone who really knows what they’re. Talking about and and I. And good advice costs money and. And similarly with the accountant. You get what you pay for back in spades in the long term, because what an accountant will save you in the. States a lawyer. Will also save you in the in the same regard and and and it’s. And it’s the same again with with HR and we’re having a webinar about a along HR in a couple of months time and. The the legal side of HR is incredibly complex now. Especially especially in a in a world where. People work from home. There’s cross. Jurisdictional remote work and that sort of stuff. Yeah, and getting it right is super, super hard knowing it that it’s right is impossible. And even the best law. In the world will always defer to reading and working it out themselves, right? So you know, I engage you, Steve and I. Is your your your. Business, we have a conversation and in six months time I ask you a question. You don’t know the answer to. You’re not gonna do the SEO answer, which is it depends. You’re gonna say it depends, but and I’ll come back in a week with a. Bunch of bits of information.ย 

Speakerย 

For you.ย 

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Yeah. Well, and and it has to be because if if we’re not spending time thinking about it, there will be some stuff that. You know from experience? Yeah, and. Where you can really add value and yeah. Pay a lawyer. If it’s not me, whoever it is, and pay a lawyer because you’re then gonna get that advice. But they’ve got. To add value. You know, if it’s someone that knows your business that’s taking the time to get to know your business and knows your sector, then that value is going to be, you know, multiple times what you’re paying in terms of actually getting the documents. Drafted themselves in you. Someone who has an interest in who you are and what. You do, who is invested in it more than others might be because they they need to be about as passionate about your business as you are. If. That’s if that’s at all possible. And it’s where where I’ve been really lucky is to have seen things go really right for clients and seeing things go really wrong for clients. And if you’ve got that shared experience, you can get to base camp pretty quickly on what you need to do. Yeah, you shouldn’t need to do the discovery piece as a lawyer. You know, you’ll need to Get the facts of the. Issue in front of you, but you’ll know the background. You’ll know the kind of business dealing with. You’ll know what their their appetite for risk is. You’ll have an idea. About the sector in which they operate and. You get way better value for money that way.ย 

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Speaking of value for money. Thank you for coming on this, everyone. Who’s listening. Everyone who’s listening in the in the future. Hello, future people. This could have been a four hour webinar or an entire day, or probably even longer because I cut. I’m pretty sure it took you longer than a day to. Learn all this stuff. There’s so much on this that is not just about right now or. About protecting what? You’ve already done and protecting what you’re gonna do. It’s about protecting the people you employ because let’s face it with in the nicest possible way, I’m gonna say sound. Like you’re employing people, you’re paying them money. You expect a return on your investment from them, which is then to deliver good work, contract supply to delivery of work from clients and staff and things like that. But equally, you’re paying those people’s mortgages or feeding their families by the salaries that you’re paying them for the work that they’re doing if they’re working. Their ***** off. Make them go on the breadline or to the food bank, or to not have their heating on because you didn’t get the right contracts and you lost the clients because you did something that’s entirely more or less mitigate all. Not that that’s a proper word and.ย 

Speakerย 

It is now.ย 

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And is now coming. And so thank you very much. For coming along, Steve. And our next webinar on the 26th of January is gonna be with Nabil and Ollie where they are from a Web 3 organisation that helps train businesses around Web 3 for for, for, in, in, in the digital business phase. They there’s just like with ChatGPT and with most legal stuff and most of Twitter, no one knows what the Hell’s going on. These guys have distilled it into something which helps agencies to understand whether it there’s a route for them to take, and similarly to how when social media became a new thing. Kind of understand which bits to put effort into and which bits to avoid, so I think. And again I think from a from a legal point of view, Steve, you’ve probably had your fair share already of conversations around web three and what the heck’s going on with all of the? Because it’s the Wild West right now, similarly to how SEO was 10/15 plus years ago. Yeah. Wanna buy a OMG NFFT Steve? Not right now.ย 

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Just the same way as as I. Wouldn’t buy a Donald Trump digital trading card, but that’s a.ย 

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Different question. For that one, for coming along, Steve, it’s been. Brilliant having you here.ย 

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Now and thanks very much, Chris and I must apologise. Occasionally my light has dimmed because I’m in a building that thinks it’s clever, where the lights go out. So if I’ve been waving around, it’s not because I’ve got some kind of condition. Just saying it.ย 

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But you do have a different condition. Another webinar, different webinar, we talk. About that one. Thanks so much. Speak to you.ย 

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Indeed so.ย 

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Later and give Steve a call if you can.ย 

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Thanks very much guys.ย 

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