Marketing contract red flags

Nobody reads a marketing services agreement carefully at the point of signing, because at the point of signing everybody likes each other. The clauses in it are not written for that moment. They are written for the moment eleven months later when somebody wants out, and they are almost always drafted by the side that will not be leaving.

What follows is each of the six, what a fair version looks like, and where we sit on it. Read this alongside your own agreement rather than instead of it, and take proper legal advice before signing anything — we run an agency, not a law firm.

How long is the notice period, really?

Notice periods hide in two places. There is the stated length, and there is the form the notice has to take. A ninety-day notice period that also requires written notice served before the anniversary date is, in practice, a single week each year in which you are permitted to leave.

Check three things: the length, the accepted method, and whether notice can be served at any point or only in a defined window. If email is not explicitly accepted, assume it is not accepted. Then check whether the agency’s own notice period matches yours. Asymmetric notice, where they can leave in thirty days and you need ninety, tells you exactly how the relationship is valued.

Where we sit: our retainers are cancellable at thirty days’ notice, in writing, at any time. That is on our contact page already, so this is a promise you can hold us to rather than a position we are taking in an article.

Whose advertising account is it?

This is the clause with the largest gap between what people assume and what is true. Meta’s own business documentation provides no self-serve route to transfer an advertising account from one business portfolio to another. The supported arrangement is partner access, where the account lives permanently in your portfolio and the agency is granted defined permissions on it.

So when an agency sets up your advertising inside its own portfolio, the practical position is that your advertising history — the pixel data, the conversion history, the account’s learning, the ad archive — sits inside an asset you cannot unilaterally take with you. The same applies to the page. The same applies to the analytics property and to the domain, and the domain is the one people lose most often.

A fair contract names the assets, states that you own them, and says access is returned or revoked on termination. If the agreement is silent on this, it is not neutral. Silence favours whoever holds the login.

Who owns the creative afterwards?

The common assumption is that paying for creative means owning it. In the United States it does not, automatically. The Copyright Office’s Circular 30 sets out that a commissioned work by an independent contractor is only a work made for hire when there is a signed written agreement saying so and the work falls within one of nine listed categories. Plenty of advertising creative sits outside those categories, which means that without an explicit assignment clause the copyright can remain with the creator.

So look for the word assignment, not just the phrase work made for hire, and look for what is carved out of it. Two carve-outs are common and only one is reasonable. An agency retaining a licence to show the work in its own portfolio is normal and fine. An agency retaining ownership of the underlying concept, the templates, or the editing project files while granting you a licence to use the finished exports is a different arrangement entirely, and it means the files you paid to produce cannot be handed to your next agency.

The concession we owe here: an assignment clause that transfers everything on day one is not always in your interest either, because it can price the work higher than it needs to be. If you genuinely only need the finished assets and the right to use them everywhere, a broad perpetual licence may cost you less than full ownership. What matters is that you chose, rather than discovered it at the end.

What triggers the auto-renewal?

Auto-renewal is not inherently unfair. Auto-renewal into a fresh minimum term is. The version to refuse is the one where a twelve-month agreement, if not cancelled inside a narrow window, renews for another twelve months rather than continuing month to month.

Ask whether the contract renews into the same term or into a rolling one, whether the fee can rise on renewal without agreement, and whether the agency is obliged to notify you before the window opens. A clause requiring the agency to remind you in writing thirty days before the deadline costs an honest agency nothing and removes the trap entirely.

What is the exclusivity clause actually stopping?

Exclusivity runs in both directions and each direction has a fair form. On your side, a clause preventing you from engaging another agency for the same channel while the retainer runs is defensible; a clause preventing you from hiring anyone in-house is not, because it makes your own capability a breach.

On the agency’s side, a category exclusivity clause — they will not take your direct competitor — is worth asking for and is often granted for a defined market and a defined period. The related one to check is non-solicitation, which frequently reads as a ban on hiring anyone who has worked on your account, including people who left the agency months ago.

What does a minimum term buy you?

Agencies argue for minimum terms on the grounds that the first months are heavily loaded with setup and the payback comes later. That argument is honest, and there is a fair way to honour it: charge a setup fee for the setup. What a minimum term does instead is convert the agency’s investment risk into your lock-in, which is a different thing wearing the same clothes.

If a minimum term is unavoidable, negotiate for a break clause tied to something reviewable, and make sure the review point sits inside the term rather than at the end of it.

What should you do before the pen comes out?

1. Log in and confirm you are an administrator on every account named in the agreement, in your own business portfolio, before the first invoice is paid.
2. Search the document for the words assignment, renew, notice, exclusive and term, and read every paragraph those five words appear in.
3. Ask for one sentence in writing: on termination, here is exactly what you receive and when.
4. Check that the agency’s obligations are as specific as yours. If your payment terms are precise and their deliverables are described as ongoing support, the document is one-sided.
5. Have a lawyer read it. It is the cheapest line item in the entire engagement.

A contract that is easy to leave is a contract an agency has to keep earning. That is not generosity on our part. It is the arrangement that makes both sides pay attention every month.

Retainers should be losable.