Congratulations! Starting your own business is an exciting and busy venture. If you are considering starting your own digital advertising agency, you already know a lot about the online world and the fast pace that your customers will want their service delivered in.
You are probably bursting with creative and compelling ideas for your new agency name, logo and pitch deck – but have you considered what you need to protect your fledgling business?
Starting out with the right suite of documents can mean the difference between protecting your intellectual property, employees, brand and sanity in the flurry of trying to get the next big deal through the door.
To help you out, we have listed five important documents for you to consider having in your back pocket. Of course, you may need more documents depending on exactly who your clients are and what services you are offering, but having these is a great start.
A Confidentiality or Non-Disclosure Agreement
How many times have you been handed one of these by a brand prior to walking into a pitch and signed it without a second thought? Well, now it’s your turn to turn the tables.
A non-disclosure agreement is an agreement between two (or more) parties that is entered into when either party plans to disclose confidential information to the other.
A non-disclosure agreement is a pivotal document when you are entering into commercial discussions with third parties before any official legal relationship has been established. For example, you want to develop an App for a prominent beauty company. They ask you to come in and show them your ideas. Fantastic – but in this situation it is likely that both you and the beauty company are going to be discussing commercially sensitive information in the meeting, and neither of you want to be restrained by worrying about disclosure of this information for a purpose other than building the app.
We always suggest that it is best to enter into a confidentiality agreement before any information is disclosed by either party. Remember, it can be done retrospectively, so that if you already have a relationship with a party and want to put something formal in place recognising the confidentiality of certain discussions, and limiting the way disclosed information can be used both now and in the future, you can do so.
It is often more commercially palatable to clients to offer a non-disclosure agreement which is mutual – meaning that information disclosed by either party is protected, rather than only protecting the party who discloses information. This means that you will be bound to keep certain information confidential, but this is probably good client care in any case. Especially if you are just starting up and want to engender a feeling of trust with your clients.
As well as protecting confidential information that is disclosed, we also suggest that your non-disclosure agreement has terms prohibiting the use of any confidential information to:
- compete with your agency
- offer any services to a third party that may be similar to the services your agency is offering
- interfere with any relationships you have with other clients
- poach any of your staff members.
If you are starting your agency as a company and going into business with more than one partner, it is extremely important to set out from the outset what roles each person will have in the company, what everyone’s duties and obligations are, how agency profits can be divided, how the company can be dissolved and what will happen in the event that something goes wrong.
Drafting a Shareholders Agreement is also a great way to get all of your partners talking about how your agency will be run and get any misconceptions out of the way before clients start rolling in.
At the very least you should have employment/contractor agreements for everyone starting the business with you.
Employment and contractor agreements will set out the roles of your workers (including you!) and cover off areas such as their remuneration and benefits, leave entitlements, what expectations you may have of them among other important factors.
Australian employment legislation is covered by the Fair Work Act 2009 (Cth), and it is important that your agreements comply with this legislation, which includes requirements of any Modern Awards.
Areas that you may want to specifically focus on in these agreements include:
- Restraint clauses: whether your employees will be restrained from working for any of your clients or competitors after they leave your employment.
- Intellectual Property: Although at law any work done by an employee is the property of an employee, this does not apply to contractors and, in any case, should be re-stated in an employment contract.
- Use of technology: It may be that some of your employees/contractors will be charged with using social media for developing your brand or that of your clients. You should ensure that any obligations relating to this are clearly set out in the employment agreement.
Service Agreement (including a standard SOW)
You will need an agreement detailing how and on what terms you will be providing services to your clients. It is important, from the outset of your legal relationship with clients, that your obligations to them and precisely what work you will be completing is written down in one document. It is easy to get caught up in the creativity of developing projects for clients and to put all the important details of the project in emails rather than in a contract.
Make it easy for yourself and create a Master Services Agreement that you can use for all your clients and simply adapt the Statement of Work (the list of what particular services you will be providing and the timeline for these) each time. That way you will know each time a client engages you that completing the legal formalities will take a very little time.
At the end of the day, you want to be focussing on building relationships with your customers, creating innovative content and bringing revenue in the door. It is imperative to ensure that you have certain core document templates ready to go. This makes the process of pitching and being engaged by clients much more seamless than if you have to delay each time to create the relevant documents and ensure your business is properly protected. If you are unsure as to which documents you may need for your startup, a good online lawyer will be able to assist.
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