Agency Contract Review: the Seven Clauses That Decide What a Marketing or Recruitment Agreement Really Costs

A marketing or recruitment agency agreement usually turns up as a PDF stapled to a proposal you have already said yes to. Four pages, a signature block, a start date next Monday. That document, not the pitch deck, decides what happens when the leads dry up in month four or the placement resigns in week three. Most of it is about leaving, not starting. Claim Done’s Contract and Agreement Reviewer reads the agreement you were sent and gives you a plain-English report on the clauses below for a flat A$49, while you can still change them.

Here is what to check, roughly in the order it tends to hurt.

The term is not the term

Read the term clause and the notice clause together, never separately. On their own each looks ordinary. Together they set a deadline that appears nowhere in the document.

Sign on 1 March for twelve months, with automatic renewal for another twelve unless you give 90 days’ written notice. Your real decision date is not next 1 March. It is roughly 1 December, month nine, while the campaign is mid-flight and nobody has looked at the year properly yet. Miss it by a week and you are in until March the year after. A contract you read as twelve months just became twenty-four.

Two fixes, both free at signing time and impossible later. Ask for a 30-day notice window instead of 90, or for the agreement to run month to month once the initial term ends. Then, on the day you sign, put a calendar reminder 30 days before the notice deadline. Every agency agreement that quietly rolled over did so because nobody diarised that date.

What the unfair contract terms law will and will not do for you

Small businesses get real protection here, and it is narrower than most people assume. Under the changes that took effect on 9 November 2023, the unfair contract terms rules cover standard form contracts where a party employs fewer than 100 people or turns over less than $10 million a year, and the old contract value threshold is gone. The ACCC sets out the three-part test on its contracts page: the term causes a significant imbalance, it is not reasonably necessary to protect the other side’s legitimate interests, and it would cause harm if relied on.

Agency retainers are usually standard form. The agency wrote it, sends the same one to every client, and you can take it or leave it. Those are the exact factors a court weighs.

What kind of clause gets struck down? In 2022 the Federal Court declared 38 terms across 11 types of Fujifilm standard form contract unfair and void, and the list reads like a tour of the agency retainer: automatic renewal, disproportionate termination rights, exit fees, broad liability limits, and unilateral variation including price increases.

Now the limit nobody mentions. Protection here is not self-executing. A term stays in the contract, and stays being invoiced against, until you raise it in writing and, if the agency pushes back, until a court declares it void. Knowing a clause is probably unfair is worth a great deal in a negotiation before signature. It is worth much less as an argument you start having after a $14,000 exit invoice lands.

Who owns the ad account, the pixel and the domain

This one costs more than any fee clause, and it is almost never in the contract at all.

Your Google Ads account, your Meta assets, your analytics property and your domain should be yours, with the agency added as a user. Not the reverse. Google Ads Help sets out five access levels for a manager account, and administrative is the one that decides who else gets in, who gets removed and who can change everyone else’s access. Linking an agency’s manager account to yours does not by itself hand over ownership, and it does not protect you either. Keep an administrative login that belongs to your business, on a company email address, and check you can actually sign in with it before the relationship gets tense.

Where an agency has built everything inside their own manager account, you may leave with no conversion history, no audience lists and no learning data. You will then pay to rebuild what you already paid for. Domains and hosting fail the same way, and we have written separately about what to send when a host refuses to release your domain.

Write one sentence into the agreement: on termination, the agency transfers or relinquishes access to all accounts, creative source files and data within a set number of days.

Deliverables that are not deliverables

“Ongoing strategic support.” “Best endeavours to improve performance.” “Up to four pieces of content per month.”

None of those are deliverables. If nothing in the schedule is countable, you cannot later say the agency underperformed, because there is nothing to measure performance against. Effort was promised, and effort was supplied.

Ask for numbers before you sign: how many pieces, how many hours, which platforms, what reporting and how often, and the name of the person doing the work rather than the name of the person who pitched. Where an agency has genuinely failed to deliver against a countable promise, that schedule is what turns a letter of demand for a refund into something more than an opinion.

Media spend, markup and whose card pays

Three questions, and the agreement should answer all three.

Is the retainer inclusive of media spend, or on top of it? Is spend passed through at cost or marked up, and if marked up, by how much? Whose credit card is on the ad platform?

That last one matters more than it sounds. Where the agency’s card pays Google and Meta, you are not the billing owner, you cannot reconcile spend against your own statements, and unwinding it mid-dispute is slow. Your card, your account, agency as a user on it.

Recruitment agreements: the rebate period is the negotiation

Recruitment paperwork hides its economics in two places.

First, the fee base. A placement fee quoted as a percentage is a percentage of something, and “total remuneration package” including superannuation, bonus and car allowance is a materially bigger number than base salary. Same percentage, bigger invoice. Get the base defined in writing.

Second, the rebate. Ask what happens if the person leaves in week three, then read the answer twice. Is it a refund or a replacement only? Does it slide away over the first weeks, and how fast? Is it void if you made the role redundant, if you paid the invoice late, or if you changed the job description? Rebate clauses that evaporate on a technicality are common, and that single term decides what a failed placement actually costs you.

Check two more. A temp-to-perm conversion fee, triggered when you hire a contractor the agency supplied. And the introduction clause, which can let an agency claim a full fee for a candidate whose CV they emailed you eleven months ago. Twelve months is a long tail on a name in an inbox, and six is more defensible.

One compliance point catches host businesses out. Where the agency supplies workers to perform work in your business rather than introducing candidates you employ directly, labour hire licensing may apply to them and, importantly, to you. Victoria’s Labour Hire Authority states that hosts must only use licensed providers, and that a host engaging an unlicensed provider faces penalties exceeding $660,000 for a corporation. Checking the Authority’s public register takes a minute, and it warns against relying on a paper certificate the provider hands you. Several other states run their own schemes, so check the one that applies where the work is actually done.

Getting out, and what you owe on the way

Ending a contract well is mostly a matter of having read the exit before you needed it, which is why business.gov.au treats negotiating, preparing and ending a contract as one continuous job rather than three. Look for termination for convenience, then look at whether both sides have it or only the agency does. Next, what is payable on exit: the balance of the term, a set number of months, or nothing beyond work already performed. An exit fee equal to the remaining term is the clause most likely to be challenged as unfair, and also the clause most likely to be sitting in the agreement in front of you right now.

Add a handover obligation while you still have bargaining power. Accounts, logins, creative source files, candidate records and reporting history, within a stated number of days of termination. If things later go wrong on a countable obligation, a notice to remedy breach is the formal step before anything else, and it works far better when the obligation was written down in the first place.

Getting the agreement read before you sign it

Claim Done’s Contract and Agreement Reviewer is built for exactly this document. Upload the agreement the agency sent you, answer a few questions about the deal, and Claim Done’s document engine produces a plain-English report: good, fair and watch points, key obligations, fees and penalties found, and questions to raise with the other side. You review and approve it, and it is then sent to you by email. Flat A$49, Australia-wide, no subscription and no retainer. Everything is listed on the pricing page.

Weigh that against the alternative. A lawyer’s review of a four-page retainer runs to several hundred dollars and a few days, which is precisely why so many agency agreements get signed unread. Claim Done is not a law firm and does not give legal advice.

If an agency agreement is sitting in your inbox waiting on a signature, start your contract review on Claim Done. Upload the PDF today and you will have a plain-English report by email, with questions to raise with the agency, before Monday’s start date turns into a twenty-four month commitment.

Frequently asked questions

Can I get out of an agency contract early if the agency is not delivering?

It depends on two things: whether the agreement lets you terminate, and whether there is a countable deliverable the agency has missed. Vague promises of effort are very hard to enforce. Where there is a specific, measurable obligation, the usual first step is a written notice to remedy breach setting out what was promised, what was delivered, and a reasonable period to fix it.

Are automatic renewal clauses in agency contracts legal in Australia?

They are not banned outright. In a standard form small business contract they can be unfair, and the Federal Court declared automatic renewal terms unfair and void in the Fujifilm proceedings brought by the ACCC. The protection is not automatic, though: you have to raise it, and a court decides. Negotiating the clause out before signing is far cheaper than arguing about it afterwards.

Does the unfair contract terms law apply to my business?

It applies to standard form contracts where a party employs fewer than 100 people or has an annual turnover under $10 million, following the changes that took effect on 9 November 2023. The old contract value threshold was removed. The ACCC's contracts page sets out the thresholds and the test a court applies.

Who should own the Google Ads and Meta accounts, us or the agency?

You should, with the agency added as a user. Keep an administrative login on a company email address and confirm it works before you need it. Where an agency runs your campaigns inside its own manager account, you can lose conversion history, audiences and learning data when the relationship ends.

Is a recruitment rebate the same as a refund?

Often not. Many rebate clauses give you a replacement candidate rather than money back, and many reduce sharply over the first few weeks. Some are void if you paid the invoice late, made the role redundant or changed the job. Read the exclusions before signing, because that term decides what a failed placement really costs.