Digital Marketing Agreement (New Zealand)

A New Zealand Digital Marketing Agreement should clearly define the scope of digital marketing services to be provided, the performance metrics (KPIs) by which the agency's performance will be measured, the advertising budget and how it will be managed, intellectual property ownership of created content, data protection obligations, and fee structure. The agreement should specify which channels are covered (search engine optimisation, pay-per-click advertising, social media management, email marketing, content creation, etc.) and the deliverables for each channel. Performance KPIs should be measurable and agreed upfront — for example, target cost per acquisition, target return on ad spend, organic search ranking improvements, or social media engagement rates. The agreement should also address the client's obligations — providing brand assets, approvals, and access to platforms — because the agency's ability to perform depends on the client's cooperation. Under the Contract and Commercial Law Act 2017 (CCLA), a well-drafted digital marketing agreement reduces the risk of disputes about whether the agency has met its obligations.

Under the Copyright Act 1994, the first owner of copyright in marketing content (copy, images, video, graphics) created by a digital marketing agency is the agency, unless the agreement expressly assigns ownership to the client. Many New Zealand digital marketing agencies retain ownership of the creative work they produce and grant the client a licence to use it — this means if the client terminates the relationship, they may not be able to use the agency's creative assets without a continued licence. To avoid this, clients should negotiate for an assignment of copyright in all work created specifically for them under the agreement, effective upon payment. Pre-existing materials the agency brings to the engagement (templates, software tools, proprietary methodologies) remain the agency's property. Platform assets — Google Ads accounts, Facebook Business Manager accounts, social media accounts — should be owned by the client from the outset, with the agency operating as an administrator. Ownership of ad accounts, audience data, and platform pixels is a common point of dispute on agency termination and should be clearly addressed in the agreement.

Digital marketing agencies in New Zealand must comply with the Fair Trading Act 1986 (FTA) in all aspects of their business, including their own marketing and their clients' advertising campaigns. The FTA prohibits misleading and deceptive conduct in trade (s 9) and false or misleading representations about goods or services (s 14). When a digital marketing agency creates advertising content on behalf of a client, both the agency and the client may be liable under the FTA if the advertising contains false or misleading claims about the client's products or services. Agencies should obtain client approval for all advertising content and should not publish claims they know to be false or misleading. The FTA also prohibits unsubstantiated representations (s 12A) — claims that cannot be substantiated by evidence at the time they are made. The Commerce Commission enforces the FTA and can impose significant financial penalties for serious breaches. The Unsolicited Electronic Messages Act 2007 (UEMA) governs email marketing — all commercial electronic messages must comply with UEMA requirements including an unsubscribe mechanism and the sender's identification.

The Privacy Act 2020 is highly relevant to digital marketing in New Zealand because digital marketing involves the collection, use, and storage of personal information about consumers. Key Privacy Act 2020 obligations for digital marketers include: collecting personal information only for a lawful purpose connected with the agency's or client's business functions; informing individuals of the purpose of collection at or before the time of collection (Information Privacy Principle 3); using personal information only for the purpose for which it was collected or a directly related purpose (IPP 10); and taking reasonable steps to protect personal information from unauthorised access or disclosure (IPP 5). Cookies and tracking technologies used in digital marketing campaigns collect personal information — New Zealand businesses should have clear cookie policies and privacy notices on their websites. The Privacy Act 2020 requires businesses to notify the Privacy Commissioner and affected individuals of a privacy breach that may cause serious harm. Digital marketing agreements should allocate responsibility for Privacy Act 2020 compliance between the agency and the client, and should include data processing provisions compliant with both New Zealand law and (where relevant) the GDPR for campaigns targeting EU consumers.

A Digital Marketing Agreement (New Zealand) does not legally require a lawyer in New Zealand, and individuals and businesses may draft and execute the document independently. The Companies Act 1993 does not mandate legal representation for the creation or signing of this type of document. However, seeking independent legal advice from a qualified New Zealand lawyer is recommended for transactions involving substantial financial value, complex regulatory requirements, or cross-border elements where multiple legal jurisdictions may apply. A lawyer can verify that the document complies with all applicable statutory requirements, identify potential risks specific to the transaction, and confirm that the terms adequately protect the interests of all parties involved. The High Court of New Zealand has jurisdiction over disputes arising from this type of document, and Companies Office may impose additional compliance obligations depending on the nature of the underlying transaction. Professional legal review is particularly advisable where the document will be submitted to government agencies or used as evidence in legal proceedings.