The current advertising ecosystem is fraught with risks as the number of intermediaries grows, media continues to fragment and new specialist agencies come into being. The recent Chapter 11 bankruptcy filing of adtech provider Sizmek serves as a subtle reminder of these risks. At the time of its bankruptcy filing, Sizmek owed 48 different creditors in excess of $40 million for digital media inventory.
To protect their investment from the impacts of this type of event, U.S. advertisers should consider implementing the following two contractual safeguards:
- Establish a “Principal-Agent” relationship with your agency partners.
- Incorporate a “Sequential Liability” clause into your agency agreements.
Incorporating Principal-Agent language into agreements reinforces the advertiser’s expectation that its agency is beholden to “always act in the best interest of the Client” when entering into agreements with its affiliates, subcontractors and or third-party vendors.
Further, establishing sequential liability as it relates to third-party vendor payments protects advertisers from the failure of any intermediary to its vendors, for which that intermediary has already been paid by the advertiser. Advertisers must also require their agencies to provide notification of any third-party vendor that will not recognize the sequential liability relationship that exists between the advertiser and the agency. By way of caution, media sellers (for instance) often incorporate “No Sequential Liability” or “Joint and Several Liability” clauses into their agreements or purchase orders with agencies which contradicts or disallows this important advertiser protection.
While properly screening agencies and third-party vendors can dramatically decrease an advertiser’s risks, the aforementioned contract clauses will offer an additional layer of protection.