This article is written by Abhishek Sharma, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Digital Marketing is simply the most remarkable platform which has influenced each one of us. It is basically the component or a part of modern marketing tactics which tends to take use of the internet, laptops/desktop computers, mobile phones and digital media to promote the products and services. After the usage of the internet has become common and accessible to maximum people around the world, the brands and businesses use this technology for marketing. This has led to considerable use of the digital devices instead of using physical means. As technology becomes prominent, digital platforms have increasingly modified the behavior of each person around the world, employing combinations of content marketing, search engine marketing, influencer marketing, search engine optimization, content automation, campaign marketing, e-commerce marketing, e-books, and even marketing educational institutes. Digital marketing not only extends to the internet-based media but also television, SMS, callback, radio, on-hold mobile ringtones as well. Digital Marketing agreement continues to evolve and there are so many challenges to consider such as what if the product or service does not live up to expectations? Therefore, it becomes very crucial to observe and find out the terms governing the Digital Marketing Agreement. 

Digital Marketing agreements

Digital Marketing agreements are understood as the contracts that expect that both the parties entering into the agreement shall have an understanding regarding a particular transaction. These agreements may be regarding:

• Promoting your products and services by entering into digital Marketing Contracts.
• As a company or marketing professional, you should acknowledge your rights and obligations towards your client.
• Presenting services that suit the client’s vision.

Important definitions

• “Confidential Information” means, all the information in respect of a party, relating to their trade which includes trade secrets and know-how, relating to the business, the affairs of the business relating to any development project or other products or services of the party. Such information may be communicated orally, in writing or in tangible form. 
• “Costs” means and includes which are incurred by the provider in executing the performance of the services under this agreement. 
• “Parties” means the named parties to the agreement and may refer to any one of them as the context requires.
• “Services” means the nature of the services and scope of the services to be carried out in detail in Exhibit A. All the services may be subject to amendments by the mutual consent of both the parties from time to time. 
• “Service Fees” means as agreed by the parties and ascribed in Exhibit A. 

Advertising material: Marketing Agency has a conclusive right to place the relevant information pertaining to the business on the social media platforms, websites, and publishers. The agency shall also have the right to develop content based on the information and material provided to the agency which shall not be mis-leading. 

Client’s obligations: It is hereby agreed that the client shall honestly render all the required information and assistance to the agency for proper execution of this agreement, as required by the agency from time to time. The client hereby agrees to whole-heartedly work with the agency in close association to provide regular information and feedback and shall be responsible for furnishing the true and exact information to the agency which shall be accurate and the client warrants and undertakes to be responsible for any false information. 

Rates: The rates for the advertising agreement shall be decided and indicated under this agreement. However, the agency shall have its discretion from time to time to increase the rates listed on the rate card, modify or even change the terms of its services. The agency shall give a prior notice of at least 28 days in writing before the effective date of the increase, modification or change that may impact the agreement. However, it shall depend upon the discretion of the client to continue or cancel the remaining agreement by giving a prior notice of 15 days; if the client fails to provide such notice then the agreement shall be binding on the client. 

Payment: The payment shall be made in advance of each month within the first 3 working days. Interest at the rate of 15% shall be paid by the client for late payment. The client shall also pay to the agency all the costs of collection, court costs and attorney’s fees if required. 

Taxes: All the taxes including the central, state or local taxes imposed on the printing, publication and distribution of the advertising material produced by the agency, such taxes shall be assumed and paid by the client himself. 

Termination:

• That the agreement between both the parties shall continue for a period of 1 year which shall be subject to termination by either of the party for non-fulfillment of any performance which is of material use to agreement at any time. However, to renew the agreement both the parties shall enter into a separate agreement;
• If either of the party defaults to make performances under the agreement, then the non-defaulting party may give a written notice to the defaulting party and if the default is not cured within 30 days of the written notice, then the non-defaulting party may be at a position to terminate the agreement;
• That either party shall have the option to terminate the agreement without notice against the other party for insolvency or bankruptcy, or any other proceeding for settlement of debt;
• All of Company’s trademarks, trade names, patents, copyrights, designs, drawings, formula, or other data, photographs, demonstrators, literature, and sales aids of every kind shall be returned by the agency after the termination of the agreement;

Errors: The client may not claim a breach of the contract if there is any typographical error, omissions or any errors in advertising on social media. The agency shall undertake all the corrective measures and correct the same within 2 working days. 

Intellectual Property Rights: All the artwork, composition, Labour or material furnished by the agency shall be the sole property of the agency, or the third parties from the agency have acquired such right to use material. All the social media content, logos, website and other material received by the client upon the approval shall belong to the client. 

Disclaimer of warranties: ​To the maximum extent permitted by applicable law, Agency and its suppliers disclaim all warranties not expressly set forth in this document, whether express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose, with regard to Agency services.

Indemnity: ​Client agrees to indemnify and hold harmless Agency, its owners and employees from and against all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, relate to Agency’s use of materials furnished by Client (including but not limited to, logos, slogans, trademarks, written content, photographs, video, music and fonts). Agency for any claims instituted by the third party. Agency does not take responsibility for determining whether your business ideas, business plans, concepts or innovations may interfere with another party’s rights or are otherwise in compliance with applicable law. 

Excusable delays/ Force Majeure: It is hereby agreed that neither of the party is liable for any kind of failure in carrying on the business due any unenforceable, unanticipated and uncontrollable act of god which is beyond the control of the parties hereto agree.

No Waiver: The agency’s failure to insist upon the performance by the client of any term or condition of this agreement under this agreement on one or more occasions will not result in the waiver of the Agency’s right to require future performance. 

Assignment: The agency shall have a right to subcontract any right under this agreement without compromising with the quality and timely submission. 

Governing Law: That the agreement shall be governed by the law of this land and any conflict arising out of the agreement shall be brought under the state where the business is being operated under the agreement and no other.

Severability: If at any point of time any provision of this agreement is invalid or unenforceable, it shall not affect the other provisions under this agreement and will remain in force. 

Dispute Resolution

Arbitration

In the event of a dispute arising between the parties with regards to the interpretation of this agreement or any default or breach by any of the party, such matter or matters in dispute shall be finally settled by way of Arbitration: 

• Under [the Rules of Conciliation and Arbitration of the International Chamber of Commerce];
• there shall be appointed a minimum three arbitrators, minimum one should be appointed by each Party, one shall be the chairman, selected by the other appointed arbitrators and failing agreement by the [Chairman of the International Chamber of Commerce];
• the language of the arbitration shall be English;
• the place of the arbitration shall be the place of business;

Important points for digital marketing agreement 

1. It is very important to note for you as a marketing company that the other party you are dealing with has authority to act especially if they are not the key-managerial personnel of the company. Every agreement carries legal risk with it. 
2. The information discussed by the client to you in the early stages of negotiation may be considered confidential. Be aware that if you want to still disclose that information, it becomes very much important to inform the client first. 
3. Ensure that the terms and conditions mentioned in the agreement are free from complex interpretations and are simple to understand.

Management Fee

Many businesses tend to forget about the management fees. They are so excited about getting an opportunity in which they miss out on deciding their management fees. Their primary is attracting the customers and increasing the sales. However, management fees are a very critical aspect that should not be avoided or overlooked. 

Be careful about long term contracts

The business environment is very dynamic and be very careful in considering the proposals included in your long term contracts. The terms which are advantageous to you in the initial years may turn out to be opposite as and when the business environment changes. Therefore, the smart thing is to negotiate for shorter periods and make changes as and when required.

Create an original contract, don’t copy and paste

Digital marketing agreements are on the rise and many templates are easily available over the internet. There are many serious legal risks involved when you copy and paste the terms and conditions that you may not interpret well. The contract you copied may turn out to be in favour of your client more than you. Moreover, using the template without taking prior permission from the owner of that template may involve the violations of intellectual property rights. The terms you borrowed/copied may not be enforceable in your region or location as far as the set of laws is concerned. 

Conclusion

Digital Marketing is going through rapid changes and the future lies in social media marketing. In the era where the internet is available at cheap rates, there are rapid changes in the functioning marketing which has shifted from offline to online mode. The coming of e-commerce has undergone drastic changes within the digital marketing industry. 

Digital Marketing has contributed to the manner in which the consumers are influenced today the implications here are that consumers are digesting advertising in new ways and changes are taking place at a rapid pace. For digital marketing freelancers, it is no longer merely enough to keep abreast of emerging trends. You must look forward and prepare for what comes next.

A simple marketing agreement is less complex and easy to form as it doesn’t require too many details except the expression of the consent by the client. However, on the contrary digital marketing agreement has quite a few minor clauses to be understood in a better way. Therefore, understand these digital marketing agreements become all the way more important. 

No matter how simple things seem or how friendly you may be, maintain professionalism all through. One way to be professional is by signing a marketing contract to protect not only your freelance reputation but even the friendship you have. It is always safer to invest in a professionally drafted marketing agreement template for all your projects.

This means creating your digital marketing contract template in a manner that contemplates and reflects these rapid changes. Only then will you be able to give excellent service provision and satisfaction to your clients while making profits appropriate to the skills and long hours you put in.

References

1. Creative 4 all, In what way to negotiate digital marketing agreement, 8 November 2019 available at https://www.creative4all.com/blog/in-what-way-to-negotiate-a-digital-marketing-agreement/ (Last visited 10 November 2020)
2. Kerry Gibbs, Actionable tips on how to negotiate digital marketing contracts, 29 September 2020, available at https://www.beaglecat.com/blog/actionable-tips-on-how-to-negotiate-digital-marketing-contracts/ (Last Visited 20 November 2020)
3. Actuate Media, How to negotiate a digital marketing agreement, 12 March 2018, available at https://www.actuatemedia.com/how-to-negotiate-a-digital-marketing-contract/ (Last visited 19 November 2020)
4. Bafmin, Digital Marketing Agreements terms and conditions, available at https://bafmin.com/service-agreement/ 9Last visited 20 November 2020)
5. Social Samosa, Sample Social Media Marketing Agreement, available at https://www.socialsamosa.com/wp-content/uploads/2013/10/Social-Media-Contract-Samples.pdf (Last visited 12 November 2020)

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