Marketing Services Agreement (New Zealand)

A Marketing Services Agreement (MSA) is broader than a Digital Marketing Agreement and covers the full range of marketing services a marketing agency or consultant may provide — including traditional media (print, radio, outdoor), public relations, brand strategy, creative development, market research, event marketing, and direct mail, in addition to digital channels. A Digital Marketing Agreement is specifically focused on online channels such as SEO, PPC, social media, and email marketing. In New Zealand, the same legal framework governs both types of agreement — the Contract and Commercial Law Act 2017 (CCLA) for contract formation and enforcement, the Fair Trading Act 1986 (FTA) for advertising content and misleading conduct, and the Privacy Act 2020 for personal data. The choice between a broad MSA and a narrower Digital Marketing Agreement depends on the scope of services being engaged. For a full-service agency relationship covering multiple channels and disciplines, an MSA is more appropriate. For a specialist digital agency focused on online channels only, a Digital Marketing Agreement provides more targeted scope definition.

Media buying is the process of purchasing advertising space — in print, online, broadcast, or outdoor media — on behalf of the client. In New Zealand, a Marketing Services Agreement should clearly address how media buying works: whether the agency buys media in its own name (as principal) or in the client's name (as agent); who is responsible for paying media invoices and whether the agency passes through media costs at cost or with a markup; the agency's right to earn agency commissions from media owners (traditionally 15% of gross media spend); whether the client has approval rights over media placements before commitment; and how the agency handles cancellations and make-good arrangements. The distinction between principal buying (agency buys and on-charges) and agency buying (client is the contracting party) has significant implications for liability — in principal buying, the agency bears the credit risk if the client cannot pay and is liable to the media owner. Clients should ensure they understand how the agency is buying media on their behalf and that the MSA reflects the intended arrangement clearly.

A effective approval process is essential in a New Zealand Marketing Services Agreement to protect both the agency and the client. The MSA should specify: the stages at which client approval is required (e.g., strategy brief, creative concept, final creative, media plan, campaign launch); the timeframes within which the client must provide approval or feedback; the consequences of delayed approvals (e.g., timeline extensions and additional costs if the delay causes rescheduling); the escalation process for feedback that requires multiple rounds of revision; and the client's final sign-off process before publication or release. Under the Fair Trading Act 1986, the client who approves advertising content takes on responsibility for ensuring it is accurate and not misleading — the client cannot blame the agency for misleading claims in advertising the client has approved. The MSA should include an indemnity from the client covering FTA liability arising from client-approved content, and a corresponding indemnity from the agency for errors or misleading content introduced by the agency without client approval. Version control and written records of approvals are essential.

The appropriate notice period for terminating a Marketing Services Agreement in New Zealand depends on the nature and scale of the engagement. For a long-term retainer arrangement involving ongoing campaign management, a 30–90 day notice period is typical — this gives the agency time to wind down campaigns, transfer platform access and assets to the client or a new agency, and complete work in progress. Shorter notice periods (14–30 days) may be appropriate for project-based engagements with clear deliverables. The MSA should also address immediate termination rights for material breach — for example, if the agency publishes advertising that breaches the Fair Trading Act 1986, or if the client fails to pay fees. On termination, the MSA should require the agency to: transfer all client-owned platform accounts and data to the client; deliver all creative assets that have been paid for; provide a handover document for active campaigns; and cease using the client's confidential information and brand assets. Fees payable on termination — including fees for work in progress and any media commitments already placed — should be clearly addressed.

A Marketing Services 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.