An NDA, also known as a confidentiality agreement, is a legally binding contract that restricts the use and disclosure of confidential material, knowledge, or information that the parties wish to share with one another for certain purposes. Typically, the party, or parties, signing the NDA agree that sensitive information they receive will not be made available to others.

It is important to consider whether you would like the NDA to be mutual, meaning both parties are legally obligated to keep the shared information or ideas of the other confidential; or unilateral, where one party agrees to keep confidential the information shared by the other party. If you would like to protect the confidentiality of your ideas and work product, and not just those of the Client, consider using or requesting a Mutual NDA. If you are providing an NDA to an employee or subcontractor in order to protect the Client’s confidential information, you may wish to use a unilateral NDA.

An NDA you receive from a Client will typically cover materials such as storyboards, moodboards, treatments, concepts and ideas, whether written or visual.  It should not contain language regarding ownership or usage, therefore you should read the document carefully and strike terms which should be found in the production agreement. Furthermore, many NDAs can last for years, so be clear on what you are signing and keep a copy on hand.

A Scope of Work (SOW) is an agreement where the work to be performed is described and the direction for the project is defined. It should outline in detail the budget, shot list; deliverables; usage and usage options and renewals (if applicable), specifications about props, wardrobe, and locations; as well as casting and talent usage. Any detail relevant to the production of the job should be included in this document. Any changes to the scope of work may trigger a change order or overage, which may increase the estimate. Also, be sure to review this document carefully making sure that the language regarding usage is consistent with your estimate.

A Purchase Order is an official document issued by the Client to confirm the agreement to purchase a product or service. The PO should indicate the services to be provided by the artist and producer, and state the amount the Client is agreeing to pay the producer and/or the artist once the product and or services are delivered.

Once a job is officially awarded, you should receive or request a PO from the Client. For companies that do not offer a PO it is important to request a signed copy of the estimate or SOW, confirming the cost and parameters of the project.

Some things to consider when reviewing the PO:

• Along with the purchase order, you may also receive the Client's production agreement. The production agreement’s terms and conditions may differ from your own terms and conditions and should be reviewed carefully.

• The information included on the cover page of the Purchase Order may supersede both the terms and conditions in your estimate as well as the client’s own terms in their agreement. Therefore, it is very important to review the PO carefully and determine which changes, if any, need to be added to the cover page of the PO.

Some examples include usage, cancellation policies, payment terms, talent payment process, IP release process, etc.

• If there are provisions in the Client’s PO or production agreement that are not favorable to you, or items in your own terms and conditions you would like included, you should request that these changes are added to the PO, as many agencies are not willing to revise their production agreement.

• Revising a PO after the fact is not always an easy process, therefore, you may want to have a conversation with the Client about the items that are important to you to include before it is created.  Typically, you will not be able to bill for an advance without the PO (or purchase order number) so saving some back and forth time is helpful to the timeline.

• Remember and understand all terms indicated on the purchase order are agreed upon by signing the purchase order.

Following are job specific terms which should be included in the PO:

Job Description:

• This is the area to summarize what is being shot and/or delivered, including the schedule, and any caveats. Items to include may be notes about the shoot schedule, deliverables, shot list, talent, locations, props, wardrobe, overtime, catering, equipment, studios, etc. If postproduction is included in your estimate, you can include that here as well.

Usage:

• It is important that all usage language is included here and is clearly understood. Sometimes, the usage language in the PO differs from that of the estimate, in which case it is important that they are made consistent, otherwise the language in the PO will prevail.

• Be sure to review the fine print of the terms and conditions (in the PO and the production agreement), because many usage terms tend to be boilerplate such as Work for Hire or copyright transfers. If this is not something you want to agree to, you will need to strike that language.

• If you are including the agreed upon usage terms in the PO, confirm that those terms will supersede any conflicting terms and conditions in the SOW or other document, to avoid confusion. 

• Primary usage on the cover page of the PO should always indicate ownership of images, the type of usage, the length of usage granted and in which territories.

• Any pre-negotiated usage options should also be included on the PO’s cover page.

Payment:

• Payment terms for advances, installments, and final payment should be agreed upon by both parties and clearly indicated in the PO.

Cancellation/Postponement:

• If you have cancellation or postponement terms that differ from the Client’s terms, they should be notated in the PO, and include anything Covid-19 specific.

A Master Services Agreement (MSA) is a contract between two entities in which the parties agree to standard terms that will govern future transactions or future agreements and are not job specific. This contract outlines the general responsibilities and obligations of each party such as warranties and representations, indemnity, and confidentiality. The MSA allows the parties to quickly enact future transactions or agreements, negotiating only the points specific to the new transaction and rely on the provisions in the master agreement for common terms. 

A production agreement is a job-specific binding contract between two parties that identifies the specific conditions of the project and responsibilities of the parties.