Which legal form suits a marketing agency?
In practice, three variants are usually considered for the start: sole proprietorship, LLC or stock corporation. Which legal form fits depends on whether you are starting alone, how high your risk is, how professional you want your market presence to be and how much you want to grow.
A sole proprietorship is often the simplest entry point. You can start quickly, have few founding formalities and do not need a minimum capital. In return, you are personally liable. If a project fails, an invoice is not paid or a customer claims damages, this can also affect your private assets.
The LLC is the balanced solution for many agency founders. It is a personal capital company, and basically only the company assets are liable for its liabilities (Art. 772 Abs. 1 OR). The share capital is at least CHF 20'000 (Art. 773 Abs. 1 OR). An LLC often appears more professional to the outside world than a sole proprietorship and is well suited if you are founding with partners or want to win larger clients.
The stock corporation is the classic capital company for larger undertakings. Here too, basically only the company assets are liable (Art. 620 Abs. 1 OR). However, the share capital is at least CHF 100'000 (Art. 621 Abs. 1 OR). For many smaller marketing agencies, this is more structure than they actually need at the beginning.
If you need support on the topic of company foundation, Jurata is always happy to help you.
Why do you need clear contracts as a marketing agency?
A contract is created in Switzerland if the parties express themselves in mutual agreement, i.e. if offer and acceptance match (Art. 1 Abs. 1 OR). This can happen in writing, orally or even tacitly (Art. 1 Abs. 2 OR). This is precisely where the risk lies for agencies.
Many projects start with a call, an email, a rough offer or a "just do it, we'll see then". That works as long as everyone is satisfied. But if a dispute arises, what was demonstrably agreed becomes crucial.
In a case concerning marketing and communication services, the Federal Supreme Court showed how important clear agreements are. An agency demanded additional compensation for branding and launching services. The court held that the agency had to prove which services were agreed and rendered and how these were to be compensated (BGer 4A_60/2023 E. 6). Because this proof failed, a large part of the claim remained unsuccessful.
For your agency, this means: The more clearly you record the scope of services, price, timing, correction loops and rights of use, the smaller your risk of dispute.
Is an agency contract an agency agreement, a contract for work and services, or something else?
With a marketing agency, there is not automatically a single type of contract. The Federal Supreme Court has expressly stated that the designation as an advertising agency alone says nothing about how the contract is to be classified legally. Depending on the concrete design, an agency agreement, a contract for work and services, an agency contract or a mixed contract may be considered (BGer 4C.181/2002 E. 1.3).
This is important because different rules may apply. Consulting services, strategy, project management or ongoing support are often shaped by agency law. Under the agency agreement, the agent undertakes to conduct the business or services transferred to him in accordance with the contract (Art. 394 Abs. 1 OR). Compensation is due if it is agreed or customary (Art. 394 Abs. 3 OR).
On the other hand, concrete results such as a logo, a website, a video or a finished design can contain elements of a contract for work and services. The decisive factor is whether a verifiable success is owed. In the case of mixed agency projects, different rules can therefore apply to different parts of the same project.
Practically, you should therefore not only offer "marketing services", but describe exactly what you deliver. For example, strategy workshop, campaign concept, three social media templates, monthly reporting, two rounds of correction and transfer of specific files.
What belongs in a good agency contract?
A good agency contract does not have to be complicated. But it must answer the questions that really become relevant in the event of a dispute.
First of all, a clear description of the services is needed. For a marketing agency, this can include strategy, consulting, social media management, ads, SEO, branding, design, text, photography, video production, website or reporting. The wider your offer is, the more important is a precise demarcation.
After that, you should regulate the price and payment model. Flat fees, hourly rates, retainers, project prices or performance-based components are possible. Variable compensation in particular should be formulated very precisely. It must be clear what it depends on, how it is measured, when it is billed and which data is decisive for this.
Deadlines and duties to cooperate are also important. Many agency projects are delayed not because of the agency, but because the client's feedback, access, releases or content are missing. Your contract should therefore regulate what the client must deliver and what happens if he does not do so in time.
Finally, you should regulate termination, default, liability, confidentiality, reference naming and place of jurisdiction. In the case of ongoing mandates, it is particularly important whether the contract can be terminated monthly, whether minimum terms apply and which services are still owed at the end of the contract.
How are GTC effectively incorporated?
GTC are very useful for a marketing agency, but they do not apply simply because they are on your website. The Federal Supreme Court clearly states: General terms and conditions have no validity of their own accord between the parties. They only apply if they have been expressly or tacitly incorporated into the contract (BGE 148 III 57 E. 2.1).
Your customer must therefore have the opportunity to take note of the GTC in a reasonable manner when concluding the contract (BGE 148 III 57 E. 2.1.2). It is best to link the GTC in the offer already and have the offer expressly confirmed with the following note: "Our GTC apply in the version retrievable at the time of contract conclusion."
Caution applies to unusual clauses. If someone only accepts GTC globally, surprising or strongly deviating clauses can be excluded, unless they were specifically pointed out (BGE 148 III 57 E. 2.1.3). The more a clause impairs the legal position of the customer, the sooner you have to highlight it clearly.
GTC are therefore no place for hidden surprises. They should be transparent, understandable and consistent with your offer. Individual agreements in the offer should also take precedence if they deviate from the GTC (BGE 148 III 57 E. 2.1.1).
Who owns logos, texts, designs and campaign ideas?
For agencies, the topic of rights of use is central. Texts, designs, photos, videos, graphics, websites and sometimes also drafts can be protected by copyright if they are intellectual creations with individual character (Art. 2 Abs. 1 URG, Art. 2 Abs. 2 URG, Art. 2 Abs. 4 URG). The author is the natural person who created the work (Art. 6 URG).
It is important to note: The delivery of a file does not automatically mean that all rights are transferred. Copyright is transferable, but the transfer of a specific right only includes other partial rights if this is agreed (Art. 16 Abs. 1 URG, Art. 16 Abs. 2 URG). Also, the transfer of a copy of the work does not automatically include copyright usage powers (Art. 16 Abs. 3 URG).
Therefore, you should contractually regulate which rights of use the customer receives. May he use the logo worldwide and for an unlimited period? May he edit designs? May he request open files? May he use campaign motifs for other products? And do rights only transfer after full payment?
Especially when freelancers, photographers, videographers or copywriters are working with you, you must also conclude clean rights agreements with them. Otherwise, you might promise your customer more than you are allowed to pass on yourself.
What do you have to observe regarding advertising and customer acquisition?
As a marketing agency, you do not only sell marketing, you also do marketing yourself. In doing so, the Federal Act against Unfair Competition applies. In particular, anyone who makes incorrect or misleading statements about themselves, their services or prices acts unfairly (Art. 3 Abs. 1 lit. b UWG). Measures that lead to confusion with services or the business operations of another are also problematic (Art. 3 Abs. 1 lit. d UWG).
For email marketing, it is particularly important that mass advertising without a direct link to a requested content is only permissible under certain conditions. The law in particular requires prior consent, a correct sender and a hassle-free as well well as free refusal option (Art. 3 Abs. 1 lit. o UWG).
So if you build newsletters, lead magnet campaigns or cold calling processes, you should think of these rules from the beginning. This protects not only you, but also your customers if you implement such campaigns for them.
What accounting does a marketing agency need?
Accounting depends heavily on your legal form and your turnover. Legal entities, in particular LLC and stock corporation, are subject to the obligation of bookkeeping and accounting (Art. 957 Abs. 1 Ziff. 2 OR). Sole proprietorships and partnerships are subject to full bookkeeping and accounting obligations if they have achieved at least CHF 500'000 in sales revenue in the last financial year (Art. 957 Abs. 1 Ziff. 1 OR).
If a sole proprietorship is below this, simplified bookkeeping of income, expenses and financial position is sufficient (Art. 957 Abs. 2 Ziff. 1 OR). Nevertheless, a clean structure is worthwhile from the start. Agencies often have many small expenses: software, licenses, ads, freelancers, stock media, devices, coworking, travel and further training. If these receipts are filed chaotically, the tax declaration becomes tedious and you lose track of your margin.
In principle, you must keep business books and accounting records for ten years (Art. 958f Abs. 1 OR). Electronic storage is possible if agreement with the business transactions is guaranteed and the documents can be made legible again at any time (Art. 958f Abs. 3 OR).
From when does VAT become important?
VAT is often relevant for marketing agencies earlier than thought. In principle, anyone who operates a business independently of legal form, purpose and profit intention and provides services domestically or has their seat, domicile or permanent establishment domestically is subject to tax (Art. 10 Abs. 1 MWSTG). However, anyone who generates less than CHF 100'000 in turnover from non-exempt services within one year is exempt from tax liability (Art. 10 Abs. 2 lit. a MWSTG).
As soon as you are subject to VAT, your invoices must meet the legal requirements. In particular, they must show the service provider, service recipient, type of service, date of service or period of service, remuneration, tax rate and tax amount (Art. 26 Abs. 1 MWSTG, Art. 26 Abs. 2 MWSTG).
For agencies, this is also important because they frequently pass on third-party services. Whether you treat media budgets, freelancer services or software costs as transitory items or as your own service should be cleanly mapped in bookkeeping and contractually.
Conclusion: How to found your marketing agency legally secure
If you want to found a marketing agency, you do not only need a good offer and a strong portfolio. You also need clear legal and financial foundations.
The most important points are simple: Choose a suitable legal form. Record services, prices and rights of use in writing. Actively incorporate GTC into your offers. Regulate who owns creative work results and how they may be used. Set up your accounting cleanly early on. And check in good time whether you become subject to VAT.
This is how you protect yourself from typical agency problems: unpaid additional services, dispute over open files, unclear retainers, surprising terminations and chaotic receipts. The clearer your foundation is, the more freely you can concentrate on what really makes your agency: good work for good clients.
Frequently asked questions about founding a marketing agency
Do I need a special permit for a marketing agency?
As a rule, you do not need a special professional permit for a classic marketing agency. Depending on the activity, however, additional rules can become relevant, for example in data protection, sweepstakes, telephone marketing, email advertising or regulated sectors such as financial services, health or alcohol advertising.
Are GTC sufficient or do I additionally need a contract?
GTC alone are usually not enough. They regulate general points, but they do not replace a concrete offer. The offer should include service, price, timing, scope of project and special agreements. The GTC complement this offer and should be expressly incorporated when concluding the contract.
Do I have to hand over open files to customers?
Only if you have contractually agreed to it. The delivery of final files does not automatically mean that open working files, raw data, designs or all rights of use are also owed. This is exactly why your contract should state what is delivered.
When should I outsource my accounting?
At the latest when you found an LLC or stock corporation, become subject to VAT, use many freelancers or regularly manage media budgets, professional support is worthwhile. Clean accounting not only shows you your tax obligations, but also which projects are really profitable.
