Which legal form suits a marketing agency?
For starting out, three variants are usually considered in practice: sole proprietorship, LLC or stock corporation. Which legal form is suitable depends on whether you are starting alone, how high your risk is, how professional your market appearance should be and how much you want to grow.
A sole proprietorship is often the easiest entry. You can start quickly, have few founding formalities and need no minimum capital. In return, you are personally liable. If a project fails, an invoice is not paid or a client claims damages, this can also affect your private assets.
The LLC is the balanced solution for many agency founders. It is a person-oriented 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). LLCs often appear more professional to the outside world than a sole proprietorship and are 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 must be at least CHF 100,000 (Art. 621 Abs. 1 OR). For many smaller marketing agencies, this is more structure at the beginning than they actually need.
If you need support with the topic of incorporation, Jurata is always happy to help you.
Why do you need clear contracts as a marketing agency?
A contract is formed in Switzerland when the parties express mutual agreement, i.e., when 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 exactly where the risk lies for agencies.
Many projects start with a call, an email, a rough quote or a "Just do it, we'll see then." This works as long as everyone is satisfied. But if a dispute arises, what can be proven to have been agreed becomes crucial.
The Federal Supreme Court showed in a case regarding marketing and communication services how important clear agreements are. An agency demanded additional compensation for branding and launch services. The court held that the agency had to prove which services were agreed and performed and how they were to be compensated (BGer 4A_60/2023 E. 6). Because this proof succeeded, a large part of the claim was unsuccessful.
For your agency, this means: the clearer you define the scope of services, price, timing, correction loops and usage rights, the smaller your risk of dispute.
Is an agency contract an agency contract, 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 legally classified. Depending on the concrete design, an agency contract, 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 more contract-of-agency based. Under an agency contract, the agent undertakes to conduct the business or services assigned to them in accordance with the contract (Art. 394 Abs. 1 OR). Compensation is due if it is agreed or customary (Art. 394 Abs. 3 OR).
In contrast, specific 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. For mixed agency projects, different rules can therefore apply to different parts of the same project.
Practically, you should therefore not just offer "marketing services", but describe exactly what you deliver. For example, strategy workshop, campaign concept, three social media templates, monthly reporting, two revision rounds and handover 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, there needs to be a clear description of the services. For a marketing agency, this can include strategy, consulting, social media management, ads, SEO, branding, design, copywriting, photography, video production, website or reporting. The broader your offer, the more important a precise delineation is.
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 they depend on, how they are measured, when they are invoiced and what 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 feedback, access, approvals or client content are missing. Your contract should therefore regulate what the client must deliver and what happens if they do not do so on time.
Finally, you should regulate termination, default, liability, confidentiality, reference mentions and place of jurisdiction. For ongoing mandates, it is particularly important whether the contract can be terminated monthly, whether minimum terms apply and what services are still owed at the end of the contract.
How are terms and conditions effectively incorporated?
General terms and conditions 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 between the parties of their own accord. They only apply if they have been expressly or tacitly incorporated into the contract (BGE 148 III 57 E. 2.1).
Thus, your client must have a reasonable opportunity to take note of the terms and conditions when concluding the contract (BGE 148 III 57 E. 2.1.2). It is best to link the terms and conditions in the offer and have the offer expressly confirmed with the following note: "Our terms and conditions apply in the version available at the time of contract conclusion."
Caution applies to unusual clauses. If someone only accepts general terms and conditions globally, surprising or strongly deviating clauses can be excluded, unless they have been specifically pointed out (BGE 148 III 57 E. 2.1.3). The more a clause impairs the client's legal position, the more clearly you must highlight it.
General terms and conditions are therefore not a 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 general terms and conditions (BGE 148 III 57 E. 2.1.1).
Who owns logos, texts, designs and campaign ideas?
For agencies, the subject of usage rights is central. Texts, designs, photos, videos, graphics, websites and partially 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: Handing over a file does not automatically mean that all rights are transferred. Although copyright is transferable, 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). The transfer of a copy of the work does not automatically include copyright usage authorizations either (Art. 16 Abs. 3 URG).
Therefore, you should contractually regulate which usage rights the client receives. Is the client allowed to use the logo worldwide and for an unlimited period? Are they allowed to edit designs? Are they allowed to request open files? Are they allowed to use campaign motifs for other products? And do rights only transfer after full payment?
Especially block if freelancers, photographers, videographers or copywriters are working with you, you must also conclude clean rights agreements with them. Otherwise, you may promise your client more than you are allowed to pass on yourself.
What do you have to consider when advertising and acquiring clients?
As a marketing agency, you do not just sell marketing, you also do marketing yourself. The Federal Act against Unfair Competition applies here. Unfair acts are, in particular, committed by anyone who makes inaccurate or misleading statements about himself, his services or prices (Art. 3 Abs. 1 lit. b UWG). Also problematic are measures designed to cause confusion with the services or business operations of another (Art. 3 Abs. 1 lit. d UWG).
For email marketing, it is particularly important that mass advertising without direct connection to requested content is only permitted under certain conditions. The law requires, in particular, prior consent, a correct sender and a problem-free and cost-free opt-out option (Art. 3 Abs. 1 lit. o UWG).
So if you set up newsletters, lead magnet campaigns or cold calling processes, you should think about these rules right from the start. This protects not only you, but also your clients 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 duty to keep books and file financial reports (Art. 957 Abs. 1 Ziff. 2 OR). Sole proprietorships and partnerships are fully subject to the duty to keep books and file financial reports if they 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 accounting of income, expenditure and assets is sufficient (Art. 957 Abs. 2 Ziff. 1 OR). Nevertheless, a clean structure is worthwhile right from the start. Agencies often have many small expenses: software, licenses, ads, freelancers, stock media, devices, coworking, travel and training. If these receipts are stored chaotically, the tax return becomes tedious and you lose track of your margin.
As a rule, you must keep business books and accounting records for ten years (Art. 958f Abs. 1 OR). Electronic storage is possible if compliance with business transactions is guaranteed and the documents can be made readable again at any time (Art. 958f Abs. 3 OR).
At what point does VAT become important?
VAT is often relevant for marketing agencies earlier than thought. In principle, anyone who carries on a business and provides services in Switzerland, or has their registered office, domicile or permanent establishment in Switzerland, is liable to tax, irrespective of legal form, purpose and profit intent (Art. 10 Abs. 1 MWSTG). However, anyone who generates less than CHF 100,000 in turnover from non-exempt services within a year is exempt from the tax liability (Art. 10 Abs. 2 lit. a MWSTG).
As soon as you are liable for VAT, your invoices must meet legal requirements. In particular, they must show the service provider, service recipient, type of service, date of service or period of service, payment, tax rate and tax amount (Art. 26 Abs. 1 MWSTG, Art. 26 Abs. 2 MWSTG).
This is also important for agencies because they often 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 out in accounting and contractually.
Conclusion: How to found your marketing agency with more legal security
If you want to found a marketing agency, you do not just 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 usage rights in writing. Actively incorporate terms and conditions 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 will become liable for VAT.
This is how you protect yourself from typical agency problems: unpaid extra services, disputes 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?
For a classic marketing agency, you usually do not need a special professional permit. Depending on the activity, however, additional rules can become relevant, for example in data protection, competitions, telephone marketing, email advertising or regulated industries such as financial services, health or alcohol advertising.
Are terms and conditions sufficient, or do I also need a contract?
Terms and conditions alone are usually not enough. They regulate the general points, but they do not replace a specific offer. The offer should state service, price, timing, project scope and special agreements. The terms and conditions supplement this offer and should be expressly included when concluding the contract.
Do I have to hand over open files to clients?
Only if you have contractually agreed to this. The handover of final files does not automatically mean that open working files, raw data, drafts or all usage rights are also owed. This is precisely why your contract should state what is being delivered.
When should I outsource my accounting?
At the latest when you found an LLC or stock corporation, become liable for VAT, use many freelancers or regularly manage media budgets, professional support is worthwhile. Clean accounting does not only show you your tax obligations, but also which projects are actually profitable.
