Part 2: Top 10 ‘Must Haves’ in Every Digital MSA

If you’re just jumping in now…

…I urge you to start reading from the beginning.  In yesterday’s post, we discussed Term, Ownership, and Indemnification.

Today, we’ll cover Confidentiality, Assumptions, Scope of Work, and Change Orders.

4. Confidentiality: We know a lot and promise not to tell.

Key Discussion Points: How secure are your agency’s systems and communication paths?  Are your servers locked down?  How about your network? Do your employees know the sensitivity of the information the client is sharing with you? How about the importance of the agency’s IP, proprietary documentation/formulas and know-how?

Suggested Language:

We both agree that during the course of this Agreement, information that is confidential or proprietary may be disclosed between and among us including but not limited to: software, technical processes, formulas, source codes, sales, costs, other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”).

Except as provided for in this Agreement, neither of us shall make any disclosure of the Confidential Information to anyone other than our employees who have a need to know such information in connection with this Agreement.  Each of us will notify our employees of their confidentiality obligations with respect to the Confidential Information, and require our employees to comply with these obligations.

In regards to your data and our IP, governance of and proprietary rights will be outlined in either the SOW or within this MSA. Additionally, AgencyNet will provide our technical infrastructure map and redundancy plan to any active client who requests it.

Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (ii) was known to the receiving party as of the time of its disclosure, (iii) is independently developed by the receiving party, or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party.

5. Assumptions: Do You Stand Behind Your Services?

Key Discussion Points: Will you be handing over code to the client at the conclusion of the project? If so, will it be modified or enhanced in any way (by someone other than your agency)? If not, how long will you guarantee that the project will function?

Suggested Language:

Do You Stand Behind Your Services?

Absolutely.  We warrant that the project we develop for you (the “Project”) and deliver to you, will function in accordance with the features described in the SOW pertaining to that project on the specific devices outlined on date of delivery.

We also warrant that our services will be performed in a highly competent and skillful manner.  To the best of our knowledge, neither the materials comprising the Project nor the Project itself (as the Project is provided to you by AgencyNet) will infringe, or be a misappropriation of, the property rights of any third parties.  If you modify the Project to any extent, however, we cannot and will not continue to warrant that the Project will function properly, or that it will not infringe the rights of third parties.

6. Scope of Work: How do we define the work?

Key Discussion Points: We don’t make static print ads. It’s not as easy as swapping out a layer in Photoshop. We build software, design 3D imagery and create motion – all utilizing other party’s complex software. That said, it’s exciting stuff. Everyone wants to push the boundaries – innovate more. Creative is subjective. But timelines are locked (or are they?) and budgets are predetermined. You need to define and prioritize… How many rounds of creative changes are you willing to accept? How about usability revisions? What about last minute polishing to make it ‘even better’?

Suggested Language:

Let’s be PALs.

No, we are not talking about becoming your best friend (that would be an additional charge).  PAL stands for “Project Attribute List”.  A PAL is a list that we mutually agree upon, in which deliverables are assigned to one of three priority levels: A, B or C.  These levels are discussed in greater detail below. You and AgencyNet will agree upon a PAL that is most suitable for your particular project, time constraints, and budget.

Question: Why are we doing this?
(Simple) Answer:  We’re doing it for you.  And us.

As your project progresses, you may want us to re-prioritize the order in which deliverables are produced or delivered.  We may be able to accommodate such requests (just ask us—we’ll let you know).  You understand, however, that if we agree to make any changes, it may delay the production and delivery and potential costs associated with other parts of your project.  So, in order to make sure that we accomplish your most important goals in the time frame and budgetary constraints listed in the SOW, you and AgencyNet will create and agree upon a PAL before work begins.

PAL Level Designations

  • PAL level A is reserved for the most important, “top priority” deliverables that must be provided to you by the date indicated in the PAL.  In other words, PAL level A is the stuff you must have.
  • PAL level B is reserved for those deliverables that will be provided to you if there is sufficient time under the SOW to do so after we complete all PAL level A items.  Generally, if there are no delays caused by you or other circumstances outside of our control, we can usually accomplish 10% of PAL level B deliverables.  You understand and agree, however, that we approach PAL level B deliverables on a “best efforts” basis, and will not provide services beyond the time parameters listed in the SOW.
  • PAL level C is a wish list.  It’s the stuff you hope to have, but due to time or budget constraints, you don’t expect to get (and we don’t expect to give you) unless (i) we mutually agree to move items up from level C to level A; (ii) we mutually agree to reduce the number of Level A and/or B items, thus increasing your odds that we will have the time and/or budget remaining to get to your level C deliverables, or (iii) you enter into a separate written SOW with us to produce such deliverables.

*NOTE: Special thanks to my good friend, Jay Wolff, President of Odopod for the inspiration on this.

7. Change Orders: Because the CEO hates yellow and loves Facebook apps (today).

Key Discussion Points: Projects evolve. Our client’s business models and needs evolve. Involvement of client-side personnel evolves. Opportunities evolve. Often times, budgets do not. How do you manage the deliverable list in such a fluid environment while keeping the relationship intact?

Suggested Language:

Requests for Re-Prioritization

All requests for re-prioritization of the deliverables in a PAL must be provided to AgencyNet in writing (email is fine).  We will act on a “best efforts” basis to accommodate your reasonable requests for re-prioritization.

Unless otherwise provided to you in writing by AgencyNet, we do not guarantee the development or delivery of deliverables except for those listed in PAL level A.  Under no circumstances shall AgencyNet be required to perform any work on deliverables in PAL levels B and C if doing so would either (i) require AgencyNet to provide services beyond the time parameters indicated in the SOW, (ii) in AgencyNet’s opinion, cause the price of the project to exceed the price(s) to be paid to AgencyNet under the SOW, or (iii) jeopardize the quality of PAL level A deliverables.

Re-Prioritizing vs. Change: What’s the Difference?

Re-prioritization of a deliverable does not mean the same thing as “revising” a deliverable.  If you want to re-prioritize a deliverable, go back and take a gander at the Section of this Agreement labeled “Requests for Re-Prioritization”.  If, however, you want to change a deliverable (e.g., change functions or features, or modify a deliverable in a significant or material way), then we will review your requested changes, and contact you (usually, at first, by telephone) to discuss your change requests.  If we are able to make the changes you requested, we will provide you with a change order, which once signed by you, will become part of this Agreement.

Delayed Performance

You acknowledge and agree that AgencyNet reserves the right to re-prioritize the deliverables in a PAL or issue a change order as reasonably necessary to remedy any delay attributable to you (e.g., failure to timely respond to us, failure to stick to deadlines, etc.).

Check back tomorrow where I’ll cover Poaching, Promotions/Credit, and Payment Schedule. Obviously, that last one matters quite a bit.