Marketing agency contract template: the clauses to check

Check a marketing agency contract template for three clauses before you use it: a work list for each service you sell, who owns what gets made, and who does the work. The third one comes up when a white label team does part of the job under your name. Have a lawyer read your edited copy before any client signs.

What's in a digital marketing agency contract?

Put two layers in a digital marketing agency contract: the core parts that cover every service, and one work list for each service you sell. A template written for one service holds one work list, and you add the others.

The core parts are the term, the payment, account access, client data, who owns the work, and how the agreement ends. For what each part of the contract says, see the parts of an SEO contract.

Each work list answers the same four questions:

1. What do you make or do, and how much of it each month?
2. What does the client give you first: logins, brand files, words, photos?
3. Who signs off, and how many rounds of changes are in the fee?
4. What isn't included?

Then each service adds a question or two of its own:

• Design. Who supplies the fonts and photos? Who gets the working files on the last day?
• Content. Who writes the words, who checks the facts in them, and who signs off before they go live?
• Social. Whose accounts do the posts go out on? Who answers the comments?
• SEO. Which tasks are on the list? What does the client see in each report?

One more question is for your lawyer. Does one agreement with a work list for each service fit your agency, or does each service get its own contract?

What should you check in a free marketing agency contract template?

Check a free template for the same things you'd check in any borrowed contract: its date, its state, the services it was written for, and what it says about who owns the work. Free or paid, the checks are the same.

Go through it with these questions:

• When was it written, and does the page say who wrote it?
• Does it name a state's law or courts, and is that state yours?
• Which services was it written for? Is there a work list for each service you sell?
• Does it say whether you may bring in a contractor or a partner firm?
• What does it say about who owns the work, and when the work changes hands?

A wide contract takes the same edits as a narrow one, service by service. For what to change in a borrowed template, see SEO contract templates.

The clause on who owns the work

A wide contract covers more kinds of made work: designs, words, posts and reports. Read the template's ownership clause beside what the US Copyright Office says about a "work made for hire".

The Copyright Office says there are two ways a work made for hire comes about:

• An employee creates the work as part of the employee's regular duties.
• The work is of a certain type, and the person who made it has an express written agreement with the party that ordered it.

For work that's ordered, the Copyright Office gives four tests, and the work has to meet every one:

1. It falls within one of nine categories on the Office's list.
2. The party that ordered the work and the people who made it have an agreement in writing.
3. In that agreement, the parties expressly agree the work is a work made for hire.
4. Every party signs the agreement.

By the Office's words, the employer or the party that ordered the work counts as the author and the copyright owner of a work made for hire.

We don't say whether design, content, social or SEO work sits in the nine categories. Ask a lawyer that, and ask what the clause has to say for ownership to land where you and your client want it.

What does a white label services agreement template add?

A white label services agreement covers a second relationship: the one between your agency and the firm that does work under your brand. Look for four things in a template for one: what the firm does, whose name goes on the work, who the workers are, and what you pay.

What the firm does, and whose name is on it

The firm's work list and your client contract's work list have to fit together. Lay the two side by side, and mark any service you promise a client that the firm doesn't do.

Here's our own list as an example. With DeskTeam360, the work goes out under your brand, and white label is on all plans. Our team builds emails, funnels and landing pages. It also makes social content and video cuts, and it handles website care and white label web design. We offer no paid ads work. So ad management on a client contract would be a job for someone else.

The agreement also sets what you pay the firm, and that number sits under your own price. For how to set your price on top of a partner, see white label SEO pricing.

Who the workers are

A white label agreement is also where the question of who does the work gets written down. California law has a test for when a worker is an employee. For the law's own words, see Which California rules apply when a helper works under my brand?.

Under California law, a worker counts as an employee, and not as a contractor, unless the hiring firm shows three things. First, the worker is free from the hiring firm's control. Second, the work is outside the hiring firm's usual business. Third, the worker runs an independent business of the same kind.

That leaves two paths for a person who does work for your agency. On the employee path, the person is on your staff. On the contractor path, the person stays independent, and that holds only if the hiring firm can show all three things. It matters when you keep the report work in house and one solo contractor builds your reports.

The same code takes a real business-to-business contract out of that test, but only when the hiring business shows every one of the 12 things it lists. One item on the list is about who the provider serves. It asks that the provider's services go directly to the hiring business, and not to that business's customers. The law says this item is set aside when two things are true. The work is done by the provider's own staff under the provider's name, and that provider regularly contracts with other businesses.

Whether white label work for your clients meets that item is a question for a lawyer. We don't say that any firm meets the list of 12, and that goes for DeskTeam360 too.

Questions to put to the firm, and then to your lawyer:

• Are the people who do the work the firm's own staff?
• Whose name goes on the work and on the emails?
• Who at the firm may sign in to a client's accounts?
• Does my client contract say whether I may use a firm like this one?

This isn't legal or tax advice.