As social media becomes increasingly important in running a business, the need for professionally run social media marketing campaigns also rises; alongside it, marketing agencies have started to offer and specialise in providing social media-related services. Compound this with the fact that offline marketing still plays a vital role in a company's strategy, and you have the recipe for a complex suit of services that a marketing agency can provide and, therefore, a complex contract that is needed to bind the relationship with its client.
Initial assessment
Upon assessing the client's current contract, we noticed the vague and generalistic way it described the services to be offered as "marketing and social media related services".
As explained by the client, this is because, in the beginning, their client's needs are unclear to either party involved. Therefore, trial and testing are needed in order to determine what works and what doesn't, and certain flexibility is necessary in order to arrive at a set of services that will be provided: Do we need regular Facebook posts? Should we print fliers? Do we need influencer campaigns, or are we better off with a banner on the side of the road?
Unfortunately, this approach is increasingly common, as more and more businesses resort to ready-made templates available widely online. While we salute the democratisation of access to legal resources, the generalistic scope of such documents vastly increases operational risks, setting the perfect path forward for litigation nightmares.
This would result in the relationship starting with a set of services that the agency would provide and the clients' demands slowly but surely, creeping up with more and more services being requested for the same amount of payment. Say, for instance, we start by providing 3 Instagram posts/week and one ad campaign for Facebook. This could quickly transform into four posts, one of which would also be published on the client's website in the form of a blog entry.
As many of us have come to learn, long-standing relationships based on consensus and nothing else are hard to amend. Client satisfaction is paramount, as it is in any business, and thus, agencies that fall short of setting clear terms from the beginning will usually face the option of a broken business relationship or accepting the arrangement that they themselves have set.
Fortunately, this problem not only has an easy fix but one that, we would argue, makes you look more professional in the eyes of your clients.
One-off vs subscriptions
Services like building a website, creating a brand identity or even running a time-bound marketing campaign can easily be provided on a one-off basis. However, in our case, most clients were retained on a recurrent model, paying a monthly subscription in exchange for a set amount of services.
First, let's talk about speed.
Speed is crucial to the way we conduct business. For example, if every time your client would ask you to run an extra ad campaign this month, you would meet that request with "Sure! But first, we have to physically meet for you to sign an amendment to our contract." you would probably be out of business soon.
Relationships have to be set up with speed in mind from the beginning. And that includes how you design your relationship from a legal perspective.
This is why, when it comes to providing services that are both recurrent and subject to a high degree of variation over time, we favour the framework model: allowing for clarity and uncompromising speed.
Framework contracts and Order forms
Without a comprehensive definition, you can think of a framework contract as defining the general terms of an agreement that subsequent orders or contract annexes will follow.
The general terms will set - as the name implies - the general aspects of the agreement, such as defining the contracting parties, establishing the duration of the agreement (and how this can be quickly or even automatically amended), general payment terms, intellectual property, NDA clauses, dispute resolution, liability disclaimers and other such clauses.
On the other hand, orders (order forms, annexes, appendices etc.) are the place where we aim to be as specific as possible in defining what, how and when/how often the various services will be provided. Also, orders are the place where additional contract terms can be defined that only makes sense for that particular service (for example, timetables and milestones, persons in charge of the project, key performance metrics etc.)
We also believe bundling the general terms with the first order is a good practice. This way, we avoid the no-man's-land of signing a (framework) contract with no actual executable substance.
Once the general terms and first order have been signed, the heavy lifting of forming the legal relationship has been completed, and all future amendments will be much easier to implement in the form of subsequent orders.
The general terms that we drafted for our client featured clauses that allow the parties to easily express their consent regarding ordering forms: from e-signing to a simple email confirmation. This way, speed, transparency and predictability were highly increased.
Clients were no longer surprised by an overinflated invoice as all services billed were easily traceable to services agreed upon.
Intellectual property
A marketing agency's work is synonymous with copyright. As a result, the contract needed to settle how intellectual property rights were handled, especially if the agency was the author of the content it provided for the client.
**In some cases, IP rights may be transferred to the client, or in jurisdictions that accept the doctrine of work-for-hire, the client can be considered the automatic owner of the copyright.**
Also, there were instances in which the content was licensed, specifying a more narrow scope of use. For example, when the agency used certain proprietary designs or materials, it was best to clearly limit the possibility of the client sublicensing these assets or even using them in another campaign than the one they were intended for.
Things were more complicated when the agency licensed content to be used for the client's benefit. Even worse, clients would regularly hand over assets to the agency with regards to which they do not have the necessary rights to use. To maintain an equitable balance in the contract, we opted, on the one hand, to expressly indicate the liability of the agency for using content that it doesn't have the necessary rights/licenses, coupled with an indemnification of the client in case of a claim or other damages (that could even include social media account suspension). On the other hand, to level the playing field, this was followed by a subsequent disclaimer of liability in case the client was the one who provided the content in question.
Can we accept platform terms of service in the name of our clients?
This is a fascinating legal problem we face when interacting with our agency clients.
Many of their clients need help setting up social media accounts, and the majority are uninterested (or unable) to use the complex tools provided by some of these platforms for an agency to operate as an account manager/admin and not by simply logging in using the client's account and password. For instance, although Facebook's business manager allows all sorts of ways an ad account can be set up and managed, this still means that someone needs to input the necessary settings for it to work. For most agencies' clients, this is just too much.
What ends up happening in the real world is that the agency logs in the client's account (sometimes after creating one) and gives itself all the permissions and access it needs to operate.
Remembering that by creating an account, setting up an ad account with payment details, publishing an ad and so on, a contract is entered into by agreeing to certain terms of service, we get back to our initial question: "Can we accept platform terms of service in the name of our clients?"
In our opinion, the answer is yes, with a few caveats.
Suppose you have a mandate to - for example - create social media accounts or run ads in the name of your clients. In that case, most jurisdictions allow you to perform other acts that are incidental or necessary for the performance of this mandate. In any case, we made sure to expressly mention the need to accept various terms and conditions when drafting the appropriate order form and provided links to them where possible.
**Just as a side note, you should always strive to never ask for direct access (via username and password) to your client's accounts.**
