Success or failure in the search engine results pages (SERPs) can make or break a business. With serious money at stake, all SEO consultants and agencies need to be conscious of the legal risks that their work entails. One of the most important ways of managing those risks is through the use of a good contract.
In this post, I look at those matters which are particular to SEO contracts. I don't cover the issues that crop up in relation to general commercial contracts, notwithstanding that they may be as or more important than the SEO-specific matters. For example, I don't mention general limitations of liability, even though these may be more important than SEO-specific limitations.
Accordingly, this article will be most help to those who are tasked with writing an SEO contract, but already know how to write other kinds of commercial contracts.
SEO contract structure
The overall structure of the contract will determine or influence much else. By “overall structure” I mean the basic exchange: what is the SEO legally obliged to provide, and what is the customer paying.
Typical structures are:
- Money for time: the customer pays the SEO for time spent doing SEO work. The amount of time/money may be variable or fixed in advance.
- Money for action: the customer pays the SEO to perform a defined action or a set of defined actions. If the amount of work and cost involved in the performance of the agreed action or actions can be assessed in advance, then payment can be fixed.
- Money for results: the customer pays the SEO to achieve defined results. For example, the SEO may guarantee specified placements in the SERPs, or a specified increase in overall organic search traffic.
- Mixed contracts: under a mixed SEO contract the customer pays for a time and/or actions and/or results. Using different mixtures of the three basic structures, a wide variety of different types of contract can be produced.
The general structure informs the approach to taken to specific issues.
SEO techniques and tactics
One common approach to the definition of the services to be provided is to frame the basic obligation in general terms and then list the specific techniques that the SEO may or may not use, with a catch-all category allowing the SEO to use pretty much any technique available. (Indeed, this is the approach taken in our SEO agreement templates.)
This approach is potentially suitable in “money for time” or “money for results” type contracts.
The approach is good from the SEO consultant's perspective, allowing maximum freedom. However, it can be risky from a client perspective. Clients should ensure that they know what their SEOs are doing, and understand the extent to which the techniques being used are now, or might in future, be considered manipulative by the search engines.
This risk can be somewhat ameliorated by an express restriction on the use of any technique which breaches Google's Webmaster Guidelines. However, it will not always be clear whether a specific technique is in breach or not. More risk-adverse clients might therefore demand prior approval of each technique used by the SEO.
Responsibility for producing necessary copy and artwork should be allocated appropriately by the contract. Where the SEO consultant is producing these materials, they will usually need to be checked and approved by the client. Where the client is producing these materials, the consultant may wish to impose obligations on the client - or at least ask for an acknowledgement that a failure to produce such materials may have a serious negative effect on the value of the work done by the SEO.
Clients at the more innocent end of the SEO experience spectrum may think that SEO services are a simple exchange of money for rankings. Unless the consultant is offering a very generous guarantee (see below), clients should be disabused of this notion.
Typically, an SEO contract will ask the client to acknowledge various facts of SEO life: the SEO does not have any control over or privileged insight into the search engine algorithms; rankings can go up as well as down; and it may take some time before the work of the consultant bears fruit, particularly in relation to a new website.
SEO consultants using more risky tactics might also ask clients to acknowledge that these tactics carry additional risks.
To guarantee or not to guarantee
Guaranteeing SERPs positions can be a dangerous game. No SEO consultancy knows all the secrets of the Google algorithm. They may have a pretty good idea of what most of the ingredients are, but no-one outside Google knows the exact recipe. Moreover, the algorithm changes regularly, hundreds of times a year. What worked in the past may not work in future. It follows that no SEO company can be sure that it will be able to achieve a particular ranking for a particular keyword.
That said, many SEOs are reasonably confident that they can produce high rankings for pre-agreed search keywords, particularly less competitive keywords. For this reason, many do offer guarantees.
SEO consultants offering guarantees need to be confident that:
- guarantees are framed clearly and unambiguously;
- they will be able to meet those guarantees in the large majority of cases;
- there is an agreed and objective method of tracking whether the terms of the guarantees have been met;
- even if they can't meet those guarantees, the consequences are not disastrous.
Clients need to be aware that the sorts of tactics that are most likely to guarantee a short-term ranking effect will not necessarily work in the long term. Google works hard to catch and either devalue or penalise SEO tricks. Of course, there's a broad swathe of greyness between “illegitimate” tricks and “legitimate” tactics.
Will on-site optimisation be performed by the SEO consultant, or by the client on the instructions of the consultant? The level of access to be granted to the consultant in relation to a website will depend upon a number of factors, notably:
- the nature of the required on-site SEO actions;
- the sensitivity of the website to security risks;
- the degree of trust between the customer and the SEO.
Larger organisations are likely to have a defined and possibly cumbersome procedure for making changes to the content and (especially) functionality of the website.
In any event, the contract should specify whether the SEO consultant will have direct access to the site, and in some cases the level of that access as well (editor account, admin account, FTP, server root access, etc).
If the consultant has privileged access to the website, then confidentiality obligations should be imposed on the consultant through the contract.
If the SEO does not have direct access to the website, then the contract may specify that the consultant's obligations in relation to on-site optimisation are to provide instructions to the client only.
Client email address
For many types of SEO activity, a consultant will need to effectively represent the client, and this may call for an email address using the domain name for the website.
The SEO consultant may ask for the right to use a client email address to be included in the contract.
As with other aspects of SEO services, there is clearly a potential for the consultant to damage the reputation of the client here. A general reputation protection clause should therefore be included in many SEO contracts.
Some SEO services will involve the creation and/or use of accounts with third party websites: social media accounts and web analytics accounts amongst others.
Some of these accounts may predate the SEO contract; others will be created in the course of the contract. Some will be created by the client; others by the consultant.
The SEO contract should specify the status of each account: who “owns” it? Who will control it after the SEO contract comes to an end?
The ownership and licensing of IP rights in material created using online accounts should be considered in connection with these questions.
Clients will usually want regular reports from the SEO consultant of the performance of the website in the SERPs. The form of these reports will typically depend upon the analytics software and systems used by the consultant. The client will need to be confident that the software and systems are reasonably accurate.
If you have any questions about SEO contracts please feel free to post them below; and if you need a quote for the preparation of a contract, please fill out our quote request form.