Table of Contents Hide
- What is a Marketing Contract?
- What are the Characteristics of a Contract?
- What are the elements of a contract?
- How can you write the perfect marketing Contract?
- The Concluding Question; Can I write my own contracts?
Partnerships in business strengthen businesses and unilaterally expand the scope of revenue. However, partnerships could be the death of most businesses where no contract is written to protect the interest of partners.
Consequently, if you seek to build significant business partnerships or offer marketing services to clients or even partners, then you should strive to know how to write the perfect marketing contract or at least, get a lawyer to write one for you.
The importance of ‘perfect’ contracts cannot be over accentuated (Bing on the word “perfect.”). A contract legally binds business partners in any agreement. It makes the partnership’s terms-of-agreement enforceable by law.
Without a signed contract, you’ll have a hard time proving ‘foul play’ or any of all such consequences. See, it’s just really sensible to have a binding agreement that protects you eventually.
In the meantime, need I kindly request that you pay meticulous attention to this read? You’ll learn a plethora of tips on how to write the perfect marketing contract at least, especially, where you’re yet to get a lawyer.
On the flip side, this read will also enable you to know what your lawyer should cover in a contract to ensure you are severally protected.
Subsequently, let’s quickly look at what you should know about a perfect marketing contract and why you need one;
What is a Marketing Contract?
Contracts are not made in heaven. Or maybe they just are. But the specific contract this post refers to, is certainly made by people who have deep knowledge of what a contract should detail.
Generally, as simply explained by Wikipedia; A is a legally binding document between at least two parties that defines and governs the rights and duties of the parties to an agreement. It is legally enforceable because it meets the requirements and approval of the law. A contract typically involves the exchange of goods, service, money, or promise of any of those
According to USLegal.com, a Marketing contract is a business’s agreement with an agency. This agreement is for the promotion of sales of the business’s goods or services. A marketing agreement can also be an agreement between a cooperative and its members, by which the members agree to sell through the cooperative, and the cooperative agrees to obtain an agreed price.
Docsketch explains a marketing contract to be a document, signed by all parties involved, that lists the scope of work to be undertaken and any duties and expectations that the business has of the marketing agency.
What are the Characteristics of a Contract?
Tritely, every perfect marketing contract has its characteristics. This is the agreement’s identity. It distinguishes it fro every common document and sets up its enforceability.
However, because our focus is not on the characteristics of a contract, they have been briefly stated here without much details.
Subsequently, the major characteristics of a contract include;
- Valid, Void, Voidable, Unenforceable
- Valid: Legally enforceable.
- Void: Illegal/Unenforceable.
- Voidable: Legal, but could be voided by any party.
- Unenforceable: Due to a change in the law, the contract is not valid.
- Expressed or Implied
- Expressed: All the terms are clearly stated in words. This can be a written agreement or an oral agreement.
- Implied: An agreement that is understood or assumed without any expressed terms.
- Bilateral or Unilateral
- Bilateral: Two promises that are immediately exchanged- Product Sales.
- Unilateral: Agreement that is based on the completion of an act by one party.
- Oral or Written
- Oral: Based on state statutes, the dollar amount of an oral agreement is enforceable.
- Written: Proves the terms of the contract in written words.
What are the elements of a contract?
For a contract to be enforceable before the law, it must have basic elements. These elements make a contract binding on parties and enforceable in law.
The said elements include;
This is a proposal made by one party (the offeror) to another party (the offeree) indicating a willingness to enter a contract.
The agreement of the offeree to be bound by the terms of the offer.
3. Genuine Agreement
Offer and acceptance go together to create genuine agreement, or a meeting of the minds. Agreement can be destroyed by fraud, misrepresentation, mistake, duress, or undue influence.
The thing of value promised to the other party in a contract in exchange for something else of value promised by the other party. This mutual exchange binds the parties together.
The law presumes that anyone entering a contract has the legal capacity to do so. Minors are generally excused from contractual responsibility, as are mentally incompetent and drugged or drunk individuals
Parties are not allowed to enforce contracts that involve executing an illegal act. Some illegal contracts involve agreements to commit a crime or a tort others involve activities made illegal by statutory law.
Offer and Acceptance:
An offer is a proposal by one or more parties to another to enter into an agreement (contract). The Offeror makes the offer, while the Offeree receives the offer.
Requirements of an offer:
- Serious Intent- made with intent.
- Definite and Certain- offer must be clearly expressed for it to be enforceable.
- Communicated to offeree- the way an offer can be legally communicated. Fax, telephone, letter etc.
Requirements of an acceptance:
Acceptance is the willingness to go along with an offer according to all the terms of the offer “Unconditional Acceptance”.
How can you write the perfect marketing Contract?
Writing the perfect contract simply means you are able to factor all necessary elements, clauses, requirements of a contract into the agreement.
It also means, every party is protected by the necessary clauses. You cannot afford to write a terrible marketing contract, it could be the death of a business.
Thus, it is imperative to ensure your marketing contract is perfect by learning, “How.”
1. Names and addresses of Parties
To write the perfect marketing contract, your agreement must first distinguish the parties involved.
No, don’t just stop there, the parties, their addresses (description) must be seen on the face of the contract.
The marketing contract must cite legal trading names (no nicknames) of parties. Underneath the trading names, you need to list the address where each business is legally registered. This is important because, if the relationship goes south, it’s easier to contact them should you need to take legal action. Double-check these details over with your client before anyone signs the dotted line.
2. Marketing Contract Timeline
The date the contract starts (not necessarily the day it was written) must be distinctly indicated on the face of the marketing contract for it to be a perfect contract.
Even the law, demands that an enforceable contract has a start date and an end date.
When do parties want the agreement to start and end?
It’s important to not only have a start and finish date but what a conclusion of work looks like. You need to clearly define that the contract will end when you’ve completed the job. No later. Once work is completed, you should hand over all work in return for final payment.
Your perfect marketing contract should indicate when the first payment will be made and when the final payment will be made, so all parties are clear.
3. Obligations of Parties
This is the foundation of your marketing contract. Here you summarize in detail the scope of work to be undertaken as part of the marketing agreement.
Simply put, every parties’ obligations in the agreement must be clearly captured in a perfectb marketing contract. Parties should know all the duties they are expected to discharge under the contract.
This clause is expedient and will make a bad contract if absent.
A perfect marketing contract should create elements of trust. Provide a list of the owned assets in the marketing agreement. That will give the client confidence that you will not undertake any tasks on any assets, not in the agreement.
5. Payment Terms
A marketing agreement should distinctly identify what both parties agree the payment terms to be. This part of a perfect contract must outline the total amount you will be paid, how they will make payment, and if the payment is refundable
Do parties agree to payment by instalments? If they do, what percentage of the total sum should come in per installment?
Clarify at which stage of the contract final payment should come in. Details of payment need also to indicate who will receive what (amount) and from who.
Then again and very importantly, indicate what penalties will work against the party that defaults with payment, either in cash or in service(s).
As the marketing consultant, you may have a proprietary process for any work you wish to undertake which involves sensitive information. The client may also request confidentiality for private intellectual property or information about customers or employees that they want to remain private.
Proprietary information covers stuff like trade secrets or other confidential information the company might not want to disclose.
7. Define the Scope of Engagement
BeltCreative notes that your scope of work is the one place that can land you in all sorts of trouble if you’re not careful.
If your marketing contract doesn’t specify how many revisions a client is allowed on a project or fails to outline precisely a term means, for example: web management, you may end upcarrying on series of extra work for a client, without pay of course. So? Spell everything out.
The scope should be highlighted in the very first page and needs to be more detailed than this:
Instead, it should be like its own appendix within the contract. The primary goal is to be very specific about what services are included in the price your client pays.
At the absolute minimum, you want to identify:
- What you and your client have agreed upon
- The services you will be providing
- What the tangible deliverables are for the services
- What you need from the client
- How many revisions you will allow
Make your scope as detailed as you possibly can, and take as many pages as you require.
A scope of work with open-ended deliverables can become your enemy once you start work. An enemy that your agency can’t afford.
8. Spell Out Conditions for More Work
Commonly known as “scope creep,” this happens when a client asks for a small extra bit of work here, and a little touch up there. It doesn’t seem like much when it first happens, but before you know it, the client gets you to perform work outside of your scope for free.
Avoid this at all costs. Be honest when a client comes to you requesting extra work. You can agree to take the work on, but you should provide them with a new quote at the same time.
Mentioning additional work requests in your contract is mandatory. Place it just below your scope and write that all additional work requests outside the scope will be quoted at a separate rate and agreement.
9. Unlawful Termination of Contract
Very often, parties may suddenly want to walk away from an existing contract out of dissatisfaction or for better opportunities before the official end date. This certainly leaves the other party very stranded.
A perfect marketing contract would prevent such irrationality. Your contract should be able to clearly impede an unlawful termination of the contract. “Unlawful” termination of a contract is where any party to the agreement rescinds from the contract before due termination.
No party should just wake up and walk away, even if such party is “sleep walking“.
Simply, the contract should prevent one party working hardship on another party from such unlawful termination.
Thus, a good contract must write a termination clause into the contract that will work for both parties, as the conditions to terminate the agreement will be the same for both of you:
Be sure to include:
- How much notice either you or your client must give
- Does the notice have to be given in written form like an email?
- How will you handle any outstanding work with your client?
10. State Penalties for Breach of Contract
Where any party fails to discharge their obligations under the marketing contract, there hs to be a penalty or else, the other party will suffer hardship, thus, defeating the purpose of a contract.
The perfect marketing contract must be firm and distinctly state that a breach of contract will give the other party the right to rescind the contract without notice to the defaulting party.
It might seem harsh, but if you’ve entered into an agreement with a client, and they are shopping around for another agency behind your back, that could be a massive breach of contract. You need to protect your interest.
To prevent this from happening, a breach of contract clause must be included in your agreement and should state that your client can’t work with another agency that performs the same work as you while your contract is active. Or if they do, they have to terminate your contract first. That way, your agency isn’t left out in the cold.
11. Insert confidentiality clause to protect Parties’ Interest.
This clause protects both parties interests. It should clearly state anything you don’t want talked about in public without either parties approval via a written consent.
The reality is, terms of a marketing contract are meant to be kept confidential by all parties. But of course, information leaks for selfish purposes. Thus, protect your interests and keep the purpose of the contractual agreement safe.
Common items to put in a confidentiality clause are:
- Your agency’s rates
- The processes you use to create products
- Any email exchanges between your agency and your client
This clause, legally stops any party from discussing business/marketing operations, yet-to-be-released news about parties’ company(ies), emails etc. It just protects ideas reavealed by each party to each party.
11. Include an indemnity clause
A most suitable example is; where one party (offeror) to the contract takes a financial hit that is a direct result of the work done by the other party (offeree). Shit happens, especially when nobody anticipates it.
If the marketing agreement does not include an indemnity clause, the services by the Offeree will make the Offeree liable to pay the Offeror damages.
The indemnity clause protects parties from unnecessary liability in the event of such losses arising from obligations of parties under the contract.
So it should come as no surprise that an indemnity clause is complicated and should be looked over by a legal team to ensure your agency is fully covered.
This is where the terms and conditions of the marketing agreement go. All business contracts have to end at some point and discussing the options each party has for terminating the contract should be provided in case something goes wrong.
It is always a great idea to set expectations so both parties can repose knowing their options if circumstances change in the agreement.
The majority of your marketing agreement with a client will focus on legal obligations and what’s included in your scope. While most templates are perfectly fine to use, you should always consult with your legal team if you want to double check a clause or the contract’s wording.
The Concluding Question; Can I write my own contracts?
Sure! You can. That’s exactly why we published this post. However, here’s a truth you shouldn’t compromise.
Marketing contracts are designed to be complicated like most contracts. There are a plethora of clauses that need to be factored in to ensure that parties are severally protected, etc.
Because of these pre-requisites, it is only wise you hire a lawyer to draft your contractual agreements. They are trained to pay detailed attention that protects clients in the long run.
Even if this post helps you know how to write the perfect marketing contract, it’s not enough to just write a perfect contract, you need a professional assessment of every detail contained in the document. That’s where the lawyers come right in.
You’ll be better of “investing” all that professional fees in a lawyer and staying right out of troubles than saving the monies and investing it in saving your ass from several legal problems. Cause, when you eventually do, you spend way more than the lawyer’s fees would have consumed.
So? While you can now effortlessly draft your own contract, thanks to Us, NEVER overlook the efficacy and potency of the lawyer’s role in perfecting your already perfect marketing contract.
Always use a lawyer’s expertise to fine tune your efforts where legal intuition is required.