Marketing agreement: marketing contracts

Danish businesses spend significant amounts on marketing every year. A large share goes to marketing agencies, advertising agencies, social-media consultants, SEO specialists and content producers. Behind these collaborations there should be a clear, written marketing agreement.

Without an agreement, questions such as "who owns the logo?" and "what happens if the campaign does not work?" are left to interpretation and conflict. This guide goes through what a marketing agreement should contain, which pitfalls to avoid, and what applies particularly in a Danish context.

What is a marketing agreement?

A marketing agreement is a contract between a client (the business wanting marketing) and a supplier (the agency, consultant or freelancer carrying out the marketing) for the delivery of marketing services.

The agreement can cover anything from:

• Brand and visual identity development
• Advertising campaigns (digital and print)
• Managing social media and content production
• SEO and search-engine advertising
• Email marketing and marketing automation
• PR and media relations
• Influencer marketing and ambassador programmes

What all these services have in common is that a clear contract is decisive for managing expectations, protecting intellectual property and securing both parties' interests.

The Marketing Practices Act: the limits you cannot deviate from

Danish marketing is subject to the Marketing Practices Act (Act no. 426 of 3 May 2017 with later amendments). Whatever you agree with your agency, certain limits are mandatory:

• A ban on misleading marketing: the marketing may not contain incorrect or misleading information
• A requirement of advertising identification: marketing must appear as marketing, so hidden advertising and unlabelled paid content are prohibited
• Special protection of children and young people: marketing may not exploit children's natural credulity
• A ban on spam (section 10 of the Act): electronic direct marketing (for example email and text messages) as a rule requires prior consent

Your marketing agreement should explicitly commit the supplier to comply with the Marketing Practices Act and other relevant legislation.

What should a marketing agreement contain?

1. The parties' identification and roles

State the client's and the supplier's full legal names, CVR numbers and contact persons. Define the roles clearly: who is strategically responsible, who approves material, and who communicates with the media?

2. The scope of the services

Describe precisely what the supplier delivers:

• Specific task types and channels (for example Facebook and Instagram advertising)
• The number of deliverables per period (for example two blog posts per week)
• Specifications (format, language, tone of voice, brand guide)
• What is not included (for example media budget, photo sessions, printing costs)

The more precisely the services are described, the easier it is to establish whether the supplier has met its obligations.

3. Timetable and delivery deadlines

State:

• The total duration of the project or the framework agreement
• Specific deadlines for individual deliverables
• Approval times: within how many working days must the client approve or comment on a draft?
• The consequence of delay on the supplier's side
• What happens if the client does not provide the necessary input on time?

4. Fee and payment structure

State the fee model:

• A fixed monthly retainer: a fixed amount for agreed services per month
• A project price: a one-off amount for a defined project
• An hourly rate: a fee per hour for specified task types
• Performance-based: a bonus on reaching KPIs

State the payment terms: invoicing interval, payment deadline and default interest. Separate the fee from the media budget and other out-of-pocket costs.

5. Intellectual property: the most important pitfall

This is the most conflict-prone point in marketing contracts. If the rights are not agreed explicitly, uncertain background rules apply.

The starting point under the Copyright Act is that the author (the agency or consultant) owns the copyright-protected works, unless the rights are transferred to the client.

The contract should clearly specify:

• Full transfer: all rights to the produced material are transferred to the client for payment
• A limited licence: the supplier keeps the rights but gives the client a licence for a specific use
• Portfolio rights: the supplier has the right to show the work in its portfolio, unless it is confidential

Third-party material: images, fonts and music from third parties have their own licence terms. Agree who secures the correct licences.

6. Confidentiality

The supplier typically gains access to commercially sensitive information: market strategies, product plans and customer data. A confidentiality clause:

• Commits the supplier not to share this information with third parties
• Prohibits using the information for its own purposes
• Sets a duration (typically a couple of years after the collaboration ends)

7. KPIs and performance requirements

Marketing exists to create results. Consider including:

• KPI definitions: what are the success parameters? (reach, engagement, leads, organic traffic)
• Reporting frequency: an ongoing report with data from the relevant channels
• Data sharing: the supplier must have access to the relevant analytics platforms; agree who owns the accounts

8. Media budget and third-party costs

Clearly separate the supplier's fee from the media budget:

• Is the media budget managed by the supplier on the client's behalf, or does the client pay directly?
• Who owns the advertising accounts on Google, Meta and LinkedIn?
• What is the supplier's margin or fee on media buying? It should be specified explicitly.

Important: owning your own advertising accounts is decisive. Changing agency is much easier if all data, history and audiences belong to the client.

9. Data protection and GDPR

Marketing almost always involves personal data (email addresses, behavioural data, cookie data). The contract should:

• Clarify the roles: is the supplier a processor or an independent controller?
• Contain or refer to a data processing agreement under the GDPR
• Regulate any transfers to countries outside the EU and EEA

10. Termination and exit procedure

State:

• The notice period for both parties (typically 1 to 3 months)
• What is delivered on ending (finished work, passwords, accounts, data)
• What happens to ongoing projects

Exit procedure: state explicitly that on ending, the supplier immediately transfers all account rights, passwords, campaign data and creative files to the client.

A note on influencer marketing

Marketing via influencers requires special considerations:

• Labelling duty: paid content must be labelled correctly. Both the advertiser and the influencer can become liable if the labelling is missing, so it should be secured in the contract.
• Content approval: require prior approval of content before publication
• Exclusivity: is the influencer prevented from working with competitors during the contract period?
• Deletion: can the client require content to be deleted after the contract ends?

Typical mistakes in marketing contracts

1. Assuming the agency transfers the rights. Many clients assume they own all the material the agency produces. That is wrong without an explicit transfer of rights.

2. A missing exit procedure. Changing agency can become extremely complicated if the contract does not specify what the agency must hand over on ending.

3. Mixing fee and media budget. A clear separation protects the client against hidden margins and ensures the media budget is used for its intended purpose.

4. No KPI requirements. A contract without performance requirements gives the agency an incentive to deliver the minimum. Define what success looks like.

5. Missing GDPR regulation. If the agency manages email lists or cookie tracking on the client's behalf, a data processing agreement is required.

Conclusion

A good marketing agreement manages expectations, ensures the rights to the produced material end up in the right place, and makes a possible change of agency simple. The most important points are a precise description of the services, a clear transfer of rights, a separation of fee and media budget, a data processing agreement and a clear exit procedure. Also make sure the advertising accounts and analytics profiles are in your own company name from the start; it is your data, and it saves you major problems if the collaboration ends.

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The content of this article is for guidance only and does not constitute legal advice. Consult a lawyer for advice on your specific situation.