NDA with a marketing agency

A marketing agency learns a business's launch dates, product plans, pricing, customer data and campaign strategy before they are public, and works for other clients, sometimes in the same market. A non-disclosure agreement between the business and the agency protects the plans and the data during the pitch and the engagement, and it also has to deal with what the agency brings: its own ideas, its pitch material and the freelancers it uses. I review the NDA the agency has produced, or draft one for the business, for a fixed fee of £495 in three working days.

Who this is for

Businesses in England and Wales appointing or pitching to a marketing, advertising, PR, social media, branding or digital agency, and agencies asked to sign a client's NDA before a pitch or an engagement. The business and the agency contract as businesses; the customer data the agency handles is governed by data protection law alongside the NDA.

What matters in an NDA with a marketing agency

Launch plans, embargoes and the information with a date on it

Marketing information is time-sensitive: a product launch, a rebrand, a price change or a campaign is confidential until a date and public afterwards. The NDA should define the confidential information to include plans, dates, creative work in progress and results, should provide for embargoes on specific announcements, and should say that information remains confidential after the launch where it has not been made public, such as the results and the spend.

The agency's other clients and conflicts

The agency's staff work across accounts, and the NDA should require the agency to keep the business's information from teams working for competitors, to tell the business if it acts for a competitor, and not to use the business's information, briefs or results for another client. The review drafts that as an information barrier rather than an exclusivity obligation, since a restriction on the agency acting for competitors is a separate commercial term with a cost, and, between businesses in the same market, one to keep proportionate under section 2 of the Competition Act 1998.

Customer data and the processor terms

Where the agency runs campaigns using the business's customer data, it processes personal data as the business's processor, and the NDA is not enough: the contract must contain the terms required by Article 28 of the UK GDPR and the Data Protection Act 2018, and marketing to individuals by electronic mail needs consent or the soft opt-in under regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003. The review checks that the NDA covers the customer data as confidential information and that the processor terms are in the NDA or in the agency agreement, so that the two do not conflict.

The agency's own ideas, pitch material and the mutual form

An agency pitching for work discloses its creative ideas, its strategy and its methods, and asks for a mutual NDA so that a business that does not appoint it cannot use the pitch. The review drafts the mutual obligations so that the agency's pitch material is protected, with copyright in it remaining the agency's under section 11 of the Copyright, Designs and Patents Act 1988 until the agency is appointed and assigns the work it is paid for, and so that the business's briefs and information are protected from use for other clients.

Freelancers, sub-contractors and the people who see the plans

Agencies use freelancers, production companies, influencers and media buyers, each of whom may see the business's plans. The NDA should permit disclosure to those who need to know, on condition that they are bound by equivalent obligations in writing and that the agency is responsible for their compliance, and should require the agency to keep a record of who has received what where the business asks for it.

Duration, remedies and the end of the relationship

The obligations should last for a stated period after the engagement ends, with trade secrets protected for as long as they remain secret under the standard in the Trade Secrets (Enforcement, etc.) Regulations 2018, and the NDA should provide for return or deletion of the business's information, briefs and data when the relationship ends, with the agency's right to keep the work it produced in its portfolio dealt with expressly. The NDA should carve out disclosures required by law and protected disclosures under Part IVA of the Employment Rights Act 1996, and should acknowledge that damages may be an inadequate remedy where a launch is leaked.

What it costs

NDA review or drafting, £495. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

Can the agency show our campaign in its portfolio or on its website?

Only if the NDA or the agency agreement lets it, and agencies expect to. The review drafts a right for the agency to show published work in its portfolio after the launch, with the business's consent for work that has not been made public and no disclosure of results or spend.

The agency works for one of our competitors. Does an NDA protect us?

It can, through an information barrier: the agency must keep your information from the team on the competitor's account, tell you it acts for the competitor, and not use your briefs or results for it. A restriction on the agency acting for the competitor at all is a separate commercial term.

The agency wants a mutual NDA before it pitches. Is that reasonable?

It is, because the agency discloses its ideas in the pitch and a business that does not appoint it could use them. The review drafts the mutual obligations so that the pitch material stays the agency's and your briefs stay yours.

Related guidance and services

• Contract review, £495, the service this page describes
• Data protection agreements and privacy terms, £795
• Reviewing a marketing agency contract before you sign
• NDA before a pitch to a large customer

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.