Legal Consultation Memo
Executive Summary
Your contract has strong defensive provisions (no-refund, Danish venue) but contains performance-sounding promises that create vulnerability. The primary risk is chargebacks, not litigation.
Key Issues Overview
Your agreement includes language that can be characterized as performance guarantees:
This creates an open-ended obligation tied to undefined "profitability" — potentially indefinite.
Even with caveats, these are exactly what dissatisfied clients cite as implied performance guarantees.
Factual promise that can frame a "not as described" claim.
Card networks don't adjudicate Danish law. They ask: "Did the merchant provide what was purchased, as described?"
Why This Contract is a Chargeback Magnet:
- Requires credit card payment with "no credit card transaction fees" (Section 4(A))
- Large B2B invoices on card = high dispute exposure
- ROAS/profitability language gives issuers ammunition for "not as described"
- No formal acceptance mechanics = ambiguous "services provided"
The "Work to be performed" list is broad and lacks:
- Tight deliverables schedule with dates
- Acceptance/rejection mechanics
- Cure provisions
- "Deemed accepted" triggers
This vagueness increases chargeback risk because issuers look for clear proof of "services provided as described."
Contract Strengths
You have three strong "first line" defenses on paper:
Strong No-Refund / Final Payment
This is unambiguous and enforceable in contract law. However, it doesn't bind card network dispute processes.
Strong Exclusive Danish Forum + Law
Effect: Meaningful deterrent and strong basis to seek dismissal/stay of a Texas action via forum-selection + forum non conveniens.
Helpful Chargeback Waiver Language
Limitations: Won't stop an issuer from processing a chargeback, but helpful for:
- Representment narrative to processor
- Later collection if chargeback succeeds
Contract Vulnerabilities
These are the "plaintiff lawyer paragraphs" — the hooks a Texas client will use:
| Issue | Location | Risk Level | Plaintiff's Argument |
|---|---|---|---|
| "Free until profitability" | Section 4(E) | Critical | "You promised profitability as part of the service" |
| ROAS 3-8X representation | Section 4(F) | Critical | "You represented specific ROI expectations" |
| "60 orders per video" | Section 4(F) | Critical | "You set specific performance benchmarks" |
| "Perfect fit" influencers | Page 2 | High | "Influencers were not a fit for our brand" |
| Vague deliverables | Work Description | High | "Services not provided as described" |
| No acceptance mechanics | Entire Agreement | Medium | "We never approved the deliverables" |
Chargeback Defense Strategy
Key insight: Winning in court and winning a chargeback are different games. You can be 100% right contractually and still lose a chargeback if your evidence trail is sloppy.
Common Chargeback Reason Codes They'll Try:
- Services not provided / not received
- Not as described / defective (most likely)
- Canceled recurring / continued billing
- Misrepresentation (functionally "not as described")
Card networks don't apply Danish law. They apply network/processor rules, and issuer bias often favors the cardholder.
Create a single PDF bundle with index containing:
Full signed contract, any scope confirmation emails
Contract item mapped to: Delivered Date | Evidence Reference
Influencer lists, outreach logs, campaign briefs, content links, posts live (screenshots), ad setup, optimization notes
"Looks good," "approved," "go live," "increase budget" — any continued direction
Deliverables delivered; results depend on market conditions; no refund per Section 4(C)
The Single Biggest Risk Reducer:
Move away from card funding for large invoices.
Do This
- Prefer wire/ACH for main fee
- If card: cap to small onboarding fee only
- Add processing fee for card payments
- Require 3DS authentication
- Add chargeback cost reimbursement clause
Avoid This
- Full program fees on credit card
- "No credit card transaction fees" (current contract)
- Large B2B invoices without wire option
Litigation Strategy
Yes, they can file. The question is whether they can keep it there.
Your Procedural Response:
- Motion to dismiss/stay based on mandatory exclusive Danish forum clause
- Forum non conveniens argument
- Personal jurisdiction defense if DK agency didn't purposefully avail itself in TX
US courts (including Texas federal courts) often enforce forum-selection clauses in commercial contracts absent fraud/overreaching/public policy issues.
| Claim Type | Their Argument | Your Defense |
|---|---|---|
| Breach of Contract | "You didn't deliver X / Y" | Deliverables table + proof of delivery |
| Misrepresentation / Fraud | "You promised ROI / ROAS" | Performance disclaimers; marketing puffery |
| Deceptive Trade Practices | Texas DTPA claims | B2B exemption; Danish law governs |
| Unjust Enrichment | Dodge contract terms | Contract governs; no quasi-contract claim |
Your Best Defense Posture:
Box the case into contract performance:
- Deliverables were provided as specified
- Contract disclaimed performance guarantees
- Outcomes depend on variables outside your control
- Client had approval/acceptance opportunities
- Any "marketing puffery" is non-actionable
Your Danish venue clause is a strong deterrent, but assume a motivated Texas client can still force you to spend money on an early procedural response unless you settle.
Contract Fixes for Future Agreements
If you want "deliverables-based, not performance-guaranteed," the agreement must be internally consistent.
Current Language (Problematic):
Recommended Replacement:
"If Client does not achieve [specific metric] within 90 days of campaign launch, Company will provide up to [X] additional optimization hours at no charge. This make-good is Client's sole remedy and is expressly not tied to any guarantee of profitability, revenue, or ROI."
Current Language (Problematic):
Options:
Option A: Remove Entirely
Delete all specific performance projections from the contract.
Option B: Separate Exhibit
Move to non-binding "Case Studies" exhibit with bold disclaimer: "NOT TYPICAL / NOT A PROMISE / NOT RELIED UPON"
Add These Provisions:
- Milestone Acceptance: "Deemed accepted within 5 business days unless specific written defects are provided"
- Cure Limitation: "Cure limited to re-performance of the specific nonconforming deliverable"
- Final Acceptance: "Upon term completion, Client waives claims based on then-known facts"
Replace Vague "Work to be Performed" with:
| Deliverable | Due Date | Acceptance Period |
|---|---|---|
| Influencer Discovery List (X creators) | Week 1 | 3 business days |
| Campaign Brief | Week 2 | 3 business days |
| Content Approval Rounds (Y rounds) | Weeks 3-4 | 2 business days each |
| Campaign Go-Live | Week 5 | N/A |
| Performance Reports | Weekly | Informational only |
Add to Agreement:
Dispute Resolution:
- Chargeback initiation = material breach
- Client remains liable for all fees regardless of chargeback outcome
- Client responsible for collection costs + attorney fees
- Exclusive forum (Glostrup) applies to collection claims
- Interest on chargebacked/overdue amounts at [X]% annually
Note: This won't stop Visa/Mastercard from processing a chargeback, but strengthens post-chargeback collection position.
Make Outcomes Conditioned on Client Inputs:
"Client acknowledges that campaign performance depends on Client's timely provision of:
- Access to ad accounts, product feeds, landing pages
- Timely content/creative approvals
- Adequate inventory and competitive pricing
- Proper attribution/tracking setup
If Client delays approvals or access, timelines shift and fees remain due."
Immediate Action Items
Right Now: Build the Dispute Packet
This doubles as chargeback representment evidence.
Send Structured Response to Client
Your response should accomplish three things:
- Confirm full performance with deliverables table (contract item | delivered date | evidence)
- Reject refund demand citing Section 4(C) "all payments final/no refunds"
- Put venue on the table — any dispute must be brought in Glostrup under Danish law; TX filing will be met with procedural response
Commercial Off-Ramp (Optional)
If you want to preserve the relationship or avoid chargeback risk:
Offer credit (not refund) conditioned on:
- Release of all claims
- Non-disparagement covenant
- No chargeback covenant
- Confirmation of delivery/acceptance through end of term
If Chargeback Is Imminent
- Notify processor now and ask what format they want for representment
- Gather transaction data: IDs, descriptor, authorization evidence, 3DS/AVS/CVV results
- Send preservation notice: "Disputes must go through contract mechanism; chargebacks are unauthorized per agreement; client remains liable for fees/costs"
Draft Response to Client
Edit the response below as needed, then click "Copy to Clipboard" to paste into your email client.