The 7 Contract Clauses a Marketing Agency Hopes You Won't Read

Most “what to look for in a marketing contract” advice online is written by agencies, stops at a few generic tips, and never mentions the Australian law that actually governs these agreements. That's the part that protects you, so it's where this guide spends its time.

The regulator is already watching these exact clauses

Start with something almost no article on this topic will tell you. The clauses that trap small businesses aren't just annoying, they're on the national watchlist.

In its compliance and enforcement priorities for 2026-27, the ACCC named unfair contract terms in small business contracts, with a specific focus on “harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses.” The regulator has also made its expectation plain: cancelling should be about as easy as signing up. When you read the clauses below, you're reading the exact things the ACCC said it's chasing this year.

The contract, clause by clause

For each part, here's what a fair version looks like and what a trap looks like. Read your contract against these.

1. The term, and why it exists. A minimum term isn't automatically a con. Real setup work happens before an agency has earned much, and some channels, SEO especially, take months to show anything, so a one-month deal can genuinely be too short to do the job. Fair: a minimum term that's honest about why it exists and reasonable in length. Trap: a long lock-in with no explanation, or a “term” that quietly renews into another one (see clause 3).

2. Exit and termination fees. This is where a lot of the pain lives. Fair: a clear notice period, and if there's an early-termination fee, one that reflects genuine costs the agency actually loses and ideally shrinks the further you get through the term. Trap: “the remainder of the agreed contract period will be payable in full,” charged no matter what it really cost them. A full-balance charge regardless of costs saved is the kind of penalty term courts have struck down.

3. Auto-renewal. The sneakiest clause in the pile. Fair: at the end of the term you roll to month-to-month, free to leave any time with reasonable notice. Trap: language like “the term will automatically renew for subsequent periods of the same duration unless you give notice 30 days prior.” Miss that narrow window by a day and you're locked into another full term. This is the exact clause type Australian courts have already declared unfair and void.

4. Ownership of your accounts and the work. Fair: your ad accounts, your website, your creative and your data are yours, on your own domain and in your name, and they stay yours if you leave. Trap: clauses stating your ad accounts or website “remain our property at all times and after cancellation,” or that you forfeit the design files and copy if you exit early. If you can lose what you paid for by leaving, you never really owned it. There's a whole guide on this one.

5. Reporting and access. Fair: direct login access to your own accounts whenever you want, and reporting on what the work actually produced, not just activity. Trap: your only window into your marketing is a monthly PDF the agency made, with no way to check whether the work is real. You're entitled to see your own numbers.

6. Guarantees and promises. Fair: if there's a guarantee, it's written plainly, with a specific number, a clear window, and exactly what happens if it's missed. Trap: a bold promise in the headline and terms elsewhere that quietly take it back. Under Australian Consumer Law it's actually illegal to misrepresent a guarantee, so a promise the contract can't back up is a legal problem, not just a marketing one.

7. Changing the deal. Fair: if the agency wants to change the terms or the price, it gives you notice and a right to leave if you don't agree. Trap: “we may change this agreement from time to time” or “may be updated by us without notice.” A contract the other side can rewrite mid-stream isn't really a fixed deal, and this exact clause type is what the ACCC has taken a major company to court over, alleging its subscription terms let it make changes without giving people a way out. Those are allegations a court hasn't ruled on yet.

What the law actually says

This isn't just my opinion about what's fair. A lot of it is backed by law.

Since 9 November 2023, unfair terms in standard-form small-business contracts aren't merely unenforceable, they're illegal, for businesses with fewer than 100 employees or under $10 million turnover. The maximum penalty for using them has since climbed to up to $100 million per breach.

And the courts have form. In 2022 a Federal Court declared 38 terms across a large company's small-business contracts unfair and void, including automatic renewals, excessive exit fees and the right to change terms unilaterally, the exact clauses above. Years earlier, the first business-to-business case of its kind struck down eight terms, including auto-renewal and one-sided price rises, and the court noted that these terms “tend to exacerbate each other,” making the overall imbalance worse.

I'll be straight about the limits of this. I couldn't find a decided case against a marketing agency specifically. The biggest cases are printers and subscription apps. But the terms are the same shape, the law applies the same way, and the regulator has said out loud that these are the clauses it's chasing. There's also more coming: a broader ban on unfair trading practices, aimed squarely at subscription traps, starts for consumers in 2027, with an extension to small business under active consideration.

Before you sign, and if you're already stuck

Before you sign, read the seven clauses above in your own contract and put the cancellation deadline in your calendar, because most people get trapped by missing the notice window, not by the term itself.

If you're already in one, here's the honest picture, including one hard truth. Business-to-business contracts don't come with a cooling-off period. There's no statutory right to simply change your mind. So your real levers are these: the notice terms in your own contract, the unfair-contract-terms law if a clause looks one-sided (an unfair term may be void, which means they can't enforce it), and the Australian Small Business and Family Enterprise Ombudsman, which offers free dispute assistance and handles exactly this kind of problem.

What a fair contract looks like when it's real

Plenty of agencies say “no lock-in.” Fewer show you the exit. Here's what mine looks like, so you can see the difference. Month to month, with no fixed term and no auto-renewal into anything. Cancel with reasonable notice and no penalty for leaving. Everything, your accounts and everything built on them, is already yours to walk away with. And any promise I make travels with its mechanics in writing, so there's nothing hidden on a separate page. I don't need to trap you, because if the work is good you'll stay, and if it isn't, no contract should force you to.

If you'd like a second pair of eyes on a contract you're being asked to sign, or one you're trying to get out of, bring it to a free teardown. I'll read the clauses with you and tell you honestly which are fair and which are traps. No pitch, and you keep whatever we work out.