Marketing & Advertising Services Agreement (Massachusetts)

MARKETING & ADVERTISING SERVICES AGREEMENT

COMMONWEALTH OF MASSACHUSETTS

THIS MARKETING & ADVERTISING SERVICES AGREEMENT (the "Agreement") is entered into as of [__/__/____] (the "Effective Date")

BY AND BETWEEN:

AGENCY:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Entity Type: ☐ Corporation ☐ LLC ☐ Sole Proprietorship ☐ Partnership
State of Formation: [________________________________]
("Agency")

AND

CLIENT:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Entity Type: ☐ Corporation ☐ LLC ☐ Sole Proprietorship ☐ Partnership
State of Formation: [________________________________]
("Client")

Agency and Client are each referred to herein as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Agency is engaged in the business of providing marketing, advertising, and related creative services; and

WHEREAS, Client desires to engage Agency to perform certain marketing and advertising services as more particularly described in this Agreement and any Statements of Work attached hereto; and

WHEREAS, Agency desires to perform such services for Client upon the terms and conditions set forth herein; and

WHEREAS, the Parties intend that Agency shall perform all services as an independent contractor and not as an employee of Client;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Advertising Materials" means all advertisements, promotional content, marketing collateral, media placements, and related materials created, developed, or produced by Agency under this Agreement.

1.2 "Brand Guidelines" means Client's written standards governing the use of Client's trademarks, logos, trade dress, color palettes, typography, tone of voice, and other brand elements, as provided to Agency and amended from time to time.

1.3 "Campaign" means a coordinated series of marketing activities, advertisements, and promotional efforts designed to achieve specific marketing objectives as described in a Statement of Work.

1.4 "Confidential Information" means all non-public information disclosed by either Party to the other, whether orally, in writing, electronically, or by inspection, including but not limited to trade secrets (as defined in M.G.L. c. 93, § 42), business plans, marketing strategies, customer lists, pricing data, financial information, creative concepts, campaign performance data, and analytics.

1.5 "Creative Materials" means all original content created by Agency in performance of services, including but not limited to graphic designs, photographs, illustrations, videos, animations, written copy, slogans, taglines, social media content, website content, and any other creative work product.

1.6 "Deliverables" means all work product, Creative Materials, Advertising Materials, reports, analyses, and other tangible outputs that Agency is required to deliver to Client under this Agreement or any SOW.

1.7 "Media Buy" means the purchase of advertising space or time on behalf of Client across any media channels, including but not limited to television, radio, print, digital display, social media, search engine, programmatic, and out-of-home advertising.

1.8 "Personal Information" means a Massachusetts resident's first name and last name, or first initial and last name, in combination with any of the following: (a) Social Security number; (b) driver's license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to a resident's financial account, consistent with M.G.L. c. 93H, § 1 and 201 CMR 17.02.

1.9 "Pre-Existing IP" means any intellectual property owned by or licensed to either Party prior to the Effective Date or developed outside the scope of this Agreement.

1.10 "SOW" or "Statement of Work" means a written document executed by both Parties that describes the specific services, Deliverables, timelines, and fees for a particular project or Campaign, substantially in the form of Exhibit A.

1.11 "Third-Party Materials" means any content, materials, software, stock images, fonts, music, or other intellectual property owned by third parties and incorporated into the Deliverables.

2. SCOPE OF SERVICES

2.1 Services

Agency shall provide the marketing and advertising services described in each SOW executed by the Parties. Services may include, but are not limited to:

☐ Brand strategy and positioning
☐ Market research and competitive analysis
☐ Creative development (graphic design, copywriting, video production)
☐ Digital marketing (SEO, SEM/PPC, social media, email marketing)
☐ Website design, development, and optimization
☐ Media planning and buying
☐ Public relations and communications
☐ Content marketing and content strategy
☐ Influencer marketing and management
☐ Direct mail and print advertising
☐ Event marketing and experiential campaigns
☐ Analytics, reporting, and performance optimization
☐ Other: [________________________________]

2.2 Statements of Work

Each SOW shall include at minimum: (a) description of services; (b) Deliverables; (c) timeline and milestones; (d) fees and payment schedule; (e) key performance indicators ("KPIs"), if applicable; and (f) approval process. Each SOW, once executed by both Parties, shall be incorporated into and governed by this Agreement.

2.3 Change Orders

Any material changes to an executed SOW must be documented in a written change order signed by authorized representatives of both Parties. Agency shall not be obligated to perform work beyond the scope of an executed SOW without a signed change order.

2.4 Performance Metrics

Where applicable, Agency and Client shall agree upon measurable KPIs in each SOW. Agency shall report on Campaign performance at the frequency specified in the SOW. Agency does not guarantee specific results, rankings, conversion rates, or return on investment unless expressly warranted in writing in the applicable SOW.

3. CREATIVE OWNERSHIP AND INTELLECTUAL PROPERTY

3.1 Work Product Ownership

Select one:

☐ Option A — Work Made for Hire / Assignment: All Creative Materials and Deliverables produced by Agency under this Agreement shall be considered "works made for hire" as defined under 17 U.S.C. § 101. To the extent any Deliverable does not qualify as a work made for hire, Agency hereby irrevocably assigns to Client all right, title, and interest in and to such Deliverable, including all copyrights, upon full payment of all fees due under the applicable SOW.

☐ Option B — License Grant: Agency retains ownership of all Creative Materials and Deliverables and grants Client an exclusive, perpetual, royalty-free, worldwide license to use, reproduce, distribute, display, and create derivative works from the Deliverables for Client's business purposes. Agency shall not license or use the Deliverables for any third party engaged in the same industry as Client.

3.2 Pre-Existing IP

Each Party retains all right, title, and interest in its Pre-Existing IP. To the extent Agency incorporates any of its Pre-Existing IP into the Deliverables, Agency grants Client a non-exclusive, perpetual, royalty-free license to use such Pre-Existing IP solely as embodied in the Deliverables.

3.3 Third-Party Materials

Agency shall identify all Third-Party Materials incorporated into Deliverables and shall ensure that appropriate licenses are obtained. Client shall be responsible for ongoing license fees for Third-Party Materials after delivery, unless otherwise specified in the SOW.

3.4 Portfolio Rights

☐ No restriction on portfolio use
☐ Portfolio use permitted after [____] months following Campaign launch
☐ Portfolio use requires prior written consent of Client
☐ Portfolio use prohibited entirely

3.5 Right of Publicity (M.G.L. c. 214, § 3A)

Massachusetts provides a statutory right of publicity under M.G.L. c. 214, § 3A, which prohibits the unauthorized use of a person's "name, portrait or picture" for "advertising purposes or for the purposes of trade" within the Commonwealth. Agency shall ensure:

(a) Written consent is obtained from any individual whose name, portrait, or picture is used in Advertising Materials
(b) Knowing violations may result in treble damages at the court's discretion
(c) Statutory exceptions include: use of an author's name with their work; professional photographer exhibit rights (until written notice of objection); and use of a person's identity in connection with goods they help manufacture or distribute

3.6 Client Materials

Client retains all ownership rights in materials provided to Agency, including Brand Guidelines, trademarks, product images, and customer data. Agency shall use Client materials solely in performance of services under this Agreement.

4. FEES AND PAYMENT

4.1 Fee Structure

Select applicable structure(s):

☐ Monthly Retainer: $[________________________________] per month
☐ Project-Based Fee: Fixed fee of $[________________________________] per SOW
☐ Hourly Rate: $[________________________________] per hour; not to exceed $[________________________________] without prior written approval
☐ Commission-Based: [____]% of gross media spend
☐ Performance-Based: Fees tied to achievement of KPIs as specified in Exhibit B
☐ Hybrid: Combination as detailed in Exhibit B

4.2 Media Buying Fees

For Media Buys, Agency shall receive compensation as follows:

☐ Agency commission of [____]% of gross media cost
☐ Markup of [____]% on net media cost
☐ Flat fee per media plan as set forth in the applicable SOW
☐ Pass-through at cost with separate service fee

Agency shall provide Client with verification of media placements and proof of performance.

4.3 Expenses

Pre-approved out-of-pocket expenses shall be reimbursed at cost. Expenses exceeding $[________________________________] per item or $[________________________________] in aggregate per month require prior written approval from Client.

4.4 Invoicing and Payment

Agency shall invoice Client ☐ monthly ☐ upon milestone completion ☐ upon delivery of Deliverables ☐ per the schedule in Exhibit B. Payment is due within [____] days of receipt of invoice.

4.5 Late Payment

Overdue payments shall bear interest at the rate of [____]% per annum, or if no rate is specified, at the statutory rate of 12% per annum under M.G.L. c. 231, § 6C. In the event of non-payment exceeding [____] days past due, Agency may, upon [____] days' written notice, suspend services until payment is received in full.

Massachusetts Interest Note: Massachusetts imposes a statutory prejudgment interest rate of 12% per annum (M.G.L. c. 231, § 6C), which has been upheld by the courts despite being set in 1982 when prevailing rates were much higher. This rate applies to both contract and tort actions. Post-judgment interest also accrues at 12%. Massachusetts has no general usury statute for business-to-business transactions, but consumer credit transactions are regulated under M.G.L. c. 271, § 49.

4.6 Taxes

Fees under this Agreement do not include applicable state and local taxes. Client shall be responsible for all sales, use, and similar taxes, excluding taxes based on Agency's income. Massachusetts imposes a 6.25% sales and use tax (M.G.L. c. 64H); applicability to specific marketing services should be evaluated.

5. TERM AND TERMINATION

5.1 Term

This Agreement shall commence on the Effective Date and continue for a period of [________________________________] (the "Initial Term"), unless earlier terminated as provided herein. After the Initial Term, this Agreement shall automatically renew for successive periods of [________________________________] (each a "Renewal Term") unless either Party provides written notice of non-renewal at least [____] days prior to the end of the then-current term.

5.2 Termination for Convenience

Either Party may terminate this Agreement upon [____] days' written notice to the other Party. Upon termination for convenience, Client shall pay Agency for: (a) all services performed through the effective date of termination; (b) non-cancellable commitments made on Client's behalf (including Media Buys); and (c) reasonable wind-down costs.

5.3 Termination for Cause

Either Party may terminate this Agreement immediately upon written notice if the other Party: (a) materially breaches this Agreement and fails to cure within [____] days after receipt of written notice specifying the breach; (b) becomes insolvent, files for bankruptcy, or has a receiver appointed for a substantial portion of its assets; or (c) is found to have engaged in fraud or willful misconduct.

5.4 Transition Assistance

Upon termination or expiration, Agency shall provide reasonable transition assistance for a period not to exceed [____] days, including: (a) transferring all Deliverables and Client materials; (b) providing access credentials for all Client accounts managed by Agency; (c) cooperating with successor agencies; and (d) returning or destroying Confidential Information. Transition assistance shall be compensated at Agency's then-current hourly rates.

5.5 Survival

Sections 3 (Intellectual Property), 4.5 (Late Payment), 7 (Confidentiality), 9 (Indemnification), 10 (Limitation of Liability), and 13 (General Provisions) shall survive termination or expiration of this Agreement.

6. CLIENT OBLIGATIONS

6.1 Cooperation

Client shall: (a) provide timely access to Brand Guidelines and all materials necessary for Agency to perform services; (b) designate a primary point of contact with authority to provide approvals; (c) respond to Agency requests for information and approval within [____] business days; and (d) provide accurate and truthful information regarding products, services, and claims.

6.2 Approvals

Client shall review and approve or reject all Deliverables and Advertising Materials within [____] business days of submission. Failure to respond within such period shall be deemed ☐ approval ☐ rejection requiring resubmission. Client is responsible for the accuracy of all factual claims and representations about its products and services.

6.3 Regulatory Information

Client shall promptly inform Agency of any regulatory requirements, restrictions, or guidelines specific to Client's industry, including any FTC consent decrees, corrective advertising orders, pending investigations by the Massachusetts Attorney General, or junk fee/negative option regulation obligations under 940 CMR 38.00.

7. CONFIDENTIALITY

7.1 Obligations

Each Party shall: (a) hold the other Party's Confidential Information in strict confidence; (b) not disclose such information to any third party except to employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations no less restrictive than those herein; and (c) not use such information for any purpose other than performing obligations under this Agreement.

7.2 Trade Secrets

The Parties acknowledge that certain Confidential Information may constitute trade secrets under the Massachusetts Trade Secrets Act (M.G.L. c. 93, §§ 42-42A, adopting the Uniform Trade Secrets Act) and/or the federal Defend Trade Secrets Act (18 U.S.C. § 1836). Under M.G.L. c. 93, § 42, a "trade secret" means information that derives independent economic value from not being generally known or readily ascertainable and is the subject of reasonable efforts to maintain secrecy. The statute of limitations is three (3) years. Trade secret protections survive indefinitely.

7.3 DTSA Notice

Pursuant to the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

7.4 Exclusions

Confidential Information does not include information that: (a) is or becomes publicly available through no breach of this Agreement; (b) was known to the receiving Party prior to disclosure; (c) is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information; or (d) is lawfully obtained from a third party without breach of any confidentiality obligation.

7.5 Duration

Confidentiality obligations under this Section shall continue for a period of [____] years following termination or expiration of this Agreement, except with respect to trade secrets, which shall be protected for as long as they retain trade secret status.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations

Each Party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) the execution of this Agreement does not conflict with any other agreement to which it is a party; and (c) it shall comply with all applicable federal, state, and local laws in performing its obligations hereunder.

8.2 Agency Representations

Agency represents and warrants that: (a) the Deliverables shall be original works of authorship (except for Third-Party Materials and Client materials) and shall not infringe the intellectual property rights of any third party; (b) Agency has the right to grant the licenses and assignments set forth in Section 3; (c) services shall be performed in a professional and workmanlike manner consistent with industry standards; and (d) Agency shall comply with all applicable advertising and marketing laws, including the FTC Act and M.G.L. c. 93A.

8.3 Client Representations

Client represents and warrants that: (a) all factual information, claims, and representations provided to Agency for inclusion in Advertising Materials are accurate, truthful, and substantiated; (b) Client has all necessary rights, permissions, and licenses in materials provided to Agency; and (c) Client's products and services comply with all applicable laws and regulations.

8.4 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AGENCY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AGENCY DOES NOT WARRANT SPECIFIC RESULTS FROM ANY CAMPAIGN.

9. ADVERTISING LAW COMPLIANCE

9.1 Federal Compliance

Agency shall ensure that all Advertising Materials comply with applicable federal laws and regulations, including:

(a) FTC Act (15 U.S.C. § 45): All advertising shall be truthful, non-deceptive, and substantiated.

(b) FTC Endorsement Guides (16 C.F.R. Part 255): All endorsements, testimonials, and influencer content shall include clear and conspicuous disclosure of material connections.

(c) CAN-SPAM Act (15 U.S.C. § 7701): All commercial email marketing shall include: accurate header information, non-deceptive subject lines, clear identification as an advertisement, a valid physical postal address, a functioning opt-out mechanism, and prompt processing of opt-out requests within 10 business days.

(d) TCPA (47 U.S.C. § 227): Telemarketing and text message campaigns shall comply with the TCPA, including obtaining prior express written consent for autodialed or prerecorded calls and texts to mobile numbers.

9.2 Massachusetts State Compliance

(a) Chapter 93A — Consumer Protection Act: All marketing activities shall comply with the prohibition on "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" (M.G.L. c. 93A, § 2). Chapter 93A is Massachusetts's "little FTC Act" (enacted 1967) and provides:

• The Attorney General adopts rules and regulations to interpret and enforce the law, interpreting § 2 consistently with the FTC Act
• Private Action (§ 9): Consumers who suffer a loss may bring suit; if the court finds a willful or knowing violation, treble damages (up to three times actual damages) may be awarded, plus attorneys' fees and costs
• Business-to-Business Claims (§ 11): Businesses may also bring actions under 93A; knowing or willful violations may result in treble damages
• Unfair or deceptive advertising is a core 93A violation

(b) Attorney General Retail Advertising Regulations (940 CMR 6.00): All advertisements must clearly and conspicuously disclose any material representation, the omission of which would have the tendency or capacity to mislead reasonable buyers. "Clear and conspicuous" means the disclosure is of such size, color, contrast, or audibility and so presented as to be readily noticed and understood. Material representations that must be disclosed include:

• Mandatory fees in addition to the advertised price (e.g., delivery, handling, installation fees)
• Conditions or limitations on advertised offers
• The fact that a product is available at the advertised price only after purchase of another product
• Whether a product is used, rebuilt, reconditioned, or discontinued
• Expiration dates or time limitations on offers
• Price comparison and savings claims must have a bona fide basis

(c) Junk Fee and Negative Option Regulations (940 CMR 38.00, eff. Sept. 2, 2025): For marketing activities involving consumer-facing pricing, Agency shall ensure compliance with the Attorney General's regulations requiring:

• Disclosure of total price inclusive of all mandatory fees at the first meaningful point of consumer contact (no "drip pricing")
• Clear and conspicuous disclosure of negative option or auto-renewal terms before the consumer's initial purchase
• Affirmative consumer consent to recurring charges
• Simple and accessible cancellation mechanisms
• Misrepresenting or failing to disclose the total price is a per se 93A violation

(d) Massachusetts Do-Not-Call and Telemarketing: The Massachusetts Attorney General enforces telemarketing restrictions under 940 CMR 28.00 and 940 CMR 29.00. Agency shall comply with all applicable restrictions including the national Do-Not-Call registry.

9.3 Influencer and Endorsement Compliance

Agency shall ensure that all influencer marketing and endorsement campaigns include proper disclosures and comply with FTC Endorsement Guides. Agency shall: (a) include disclosure requirements in all influencer contracts; (b) monitor influencer posts for compliance; and (c) take prompt corrective action if disclosures are missing or inadequate.

9.4 Substantiation

Agency shall not create or disseminate any advertising claim on behalf of Client unless Client has provided adequate substantiation. Given the treble-damages exposure under c. 93A §§ 9 and 11, both Parties shall exercise heightened diligence.

10. DATA PROTECTION AND PRIVACY

10.1 Data Collection

Agency shall collect, use, store, and process consumer data obtained through marketing activities only in accordance with applicable law, Client's privacy policy, and the terms of this Agreement.

10.2 Massachusetts Privacy Provisions

(a) Standards for Protection of Personal Information (201 CMR 17.00): Agency shall implement and maintain a comprehensive written information security program ("WISP") for the protection of personal information of Massachusetts residents, including: designating responsible employees, identifying and evaluating risks, developing security policies, imposing disciplinary measures for violations, preventing terminated employees from accessing records, overseeing service providers, restricting physical access, monitoring systems, reviewing the program annually, and documenting responsive actions to breaches.

(b) Data Breach Notification (M.G.L. c. 93H): In the event of a breach of security involving Personal Information, notice must be provided to the Massachusetts Attorney General, the Director of the Office of Consumer Affairs and Business Regulation ("OCABR"), and affected individuals "as soon as practicable and without unreasonable delay." Notice must include: the nature of the breach, the number of Massachusetts residents affected, steps taken or planned in response, and services being offered to affected individuals. If Social Security numbers are compromised, the notifying entity must provide at least 18 months of free credit monitoring services (42 months if the breached entity is a consumer reporting agency).

(c) Right of Privacy (M.G.L. c. 214, § 1B): Massachusetts recognizes a statutory right of privacy. Agency shall not unreasonably intrude upon the privacy of Massachusetts residents in connection with marketing activities.

(d) Right of Publicity (M.G.L. c. 214, § 3A): As addressed in Section 3.5, written consent is required for the use of any person's name, portrait, or picture for advertising purposes or trade purposes within Massachusetts.

10.3 Data Security

Agency shall implement and maintain a WISP complying with 201 CMR 17.00, as further documented in Exhibit D (WISP Compliance Certification). The WISP shall include reasonable administrative, technical, and physical safeguards to protect consumer data, including at minimum:

(a) Encryption of all Personal Information transmitted wirelessly or across public networks
(b) Encryption of all Personal Information stored on laptops or other portable devices
(c) Secure user authentication protocols, including control of user IDs, passwords, and access privileges
(d) Up-to-date firewall protection, operating system security patches, and malware protection on all systems processing Personal Information
(e) Reasonable monitoring of systems for unauthorized use of or access to Personal Information
(f) Education and training of employees on proper security procedures

10.4 Breach Notification

In the event of a data breach involving Client data or consumer data collected through marketing activities, Agency shall notify Client within [____] hours of discovery. The Parties shall cooperate in complying with M.G.L. c. 93H notification requirements.

10.5 CAN-SPAM Compliance Data

Agency shall maintain suppression lists and opt-out records for all email marketing campaigns and shall process unsubscribe requests within 10 business days.

10.6 Data Return/Destruction

Upon termination of this Agreement, Agency shall, at Client's election, return or securely destroy all consumer data and personal information collected in connection with marketing activities, and certify such return or destruction in writing.

11. NON-COMPETE AND NON-SOLICITATION

11.1 Massachusetts Noncompetition Agreement Act (M.G.L. c. 149, § 24L)

Massachusetts enacted the Noncompetition Agreement Act effective October 1, 2018. The Act imposes significant requirements on non-compete agreements with employees:

(a) Garden Leave or Mutually-Agreed Consideration: A noncompetition agreement must include either: (i) a "garden leave clause" providing payment of at least 50% of the employee's highest annualized base salary within the preceding 2 years during the restricted period; or (ii) other mutually-agreed upon consideration. Failure to pay garden leave may subject the employer to treble damages under the Wage Act (M.G.L. c. 149, § 148).

(b) Duration Limits: Noncompetition periods are presumptively reasonable if 12 months or less; agreements exceeding 12 months are presumptively unreasonable.

(c) Prohibited Categories: Non-competes are unenforceable against: nonexempt employees under the FLSA; undergraduate or graduate students in internships; employees terminated without cause or laid off; and employees age 18 or younger.

(d) Formal Requirements: The agreement must be in writing, signed by both parties, supported by independent consideration (if entered after employment begins), and state the employee's right to consult an attorney.

Practitioner Note: This Agreement governs an independent contractor relationship. Section 24L applies to employees. However, Massachusetts courts may apply these principles to evaluate the reasonableness of any restrictive covenant. A qualifying "garden leave clause" is excluded from the definition of "noncompetition agreement" under the Act.

11.2 Non-Solicitation of Employees

During the term and for a period of [____] months following termination, neither Party shall directly solicit for employment any employee of the other Party who was involved in the performance of services under this Agreement, without the prior written consent of the other Party. This restriction shall not apply to general advertisements or job postings.

11.3 Competitor Restrictions

Select one:

☐ No Restriction: Agency may provide services to Client's competitors without restriction.

☐ Notification: Agency shall notify Client if Agency begins providing services to a direct competitor of Client.

☐ Limited Restriction: During the term and for [____] months thereafter (not to exceed 12 months, consistent with the presumptive reasonableness standard under § 24L), Agency shall not provide substantially similar services to the following named competitors: [________________________________]. This restriction is limited to the geographic area of [________________________________].

11.4 Non-Solicitation of Clients

During the term and for a period of [____] months following termination, Agency shall not solicit Client's customers or accounts to which Agency was introduced or had access solely as a result of this Agreement. Non-solicitation covenants are not subject to the restrictions of M.G.L. c. 149, § 24L.

12. INDEMNIFICATION

12.1 Agency Indemnification

Agency shall indemnify, defend, and hold harmless Client and its officers, directors, employees, and agents from and against all third-party claims, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising from: (a) Agency's infringement of any third-party intellectual property rights in the Deliverables (excluding claims arising from Client-provided materials or Client's instructions); (b) Agency's violation of any advertising, marketing, or consumer protection law, including c. 93A; (c) Agency's negligence or willful misconduct; or (d) Agency's breach of this Agreement.

12.2 Client Indemnification

Client shall indemnify, defend, and hold harmless Agency and its officers, directors, employees, and agents from and against all third-party claims, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising from: (a) Client's products or services; (b) the accuracy of information, claims, and materials provided by Client; (c) Client's infringement of third-party rights in Client-provided materials; or (d) Client's breach of this Agreement.

12.3 Indemnification Procedure

The indemnified Party shall: (a) promptly notify the indemnifying Party in writing of any claim; (b) allow the indemnifying Party to control the defense and settlement; and (c) cooperate at the indemnifying Party's expense. The indemnifying Party shall not settle any claim that admits fault or imposes obligations on the indemnified Party without prior written consent.

12.4 Chapter 93A Considerations

The Parties acknowledge that unfair or deceptive advertising may give rise to claims under M.G.L. c. 93A by consumers (§ 9) or businesses (§ 11), with potential treble damages for knowing or willful violations. The indemnification obligations herein specifically encompass 93A claims arising from Advertising Materials.

13. LIMITATION OF LIABILITY

13.1 Cap on Liability

EXCEPT FOR OBLIGATIONS UNDER SECTIONS 7 (CONFIDENTIALITY), 10 (DATA PRIVACY), AND 12 (INDEMNIFICATION), NEITHER PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO AGENCY DURING THE [____]-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.2 Exclusion of Consequential Damages

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.

Massachusetts Note: Treble damages under M.G.L. c. 93A §§ 9 and 11 are considered punitive in nature but are statutory remedies that may not be contractually waived as between consumers and businesses. In a B2B context, the enforceability of consequential damage waivers as applied to 93A claims is subject to court analysis.

13.3 Exceptions

The limitations in Sections 13.1 and 13.2 shall not apply to: (a) either Party's indemnification obligations; (b) either Party's breach of confidentiality or data privacy obligations; (c) Agency's infringement of Client's intellectual property rights; (d) statutory remedies under M.G.L. c. 93A; or (e) damages arising from a Party's fraud, gross negligence, or willful misconduct.

14. INDEPENDENT CONTRACTOR STATUS

14.1 Relationship of the Parties

Agency is an independent contractor and not an employee, partner, joint venturer, or agent of Client. Nothing in this Agreement shall be construed to create an employment relationship.

14.2 Massachusetts ABC Test (M.G.L. c. 149, § 148B)

Massachusetts applies one of the strictest ABC tests in the nation. Section 148B is a strict liability statute. An individual performing services is considered an employee unless ALL three prongs are satisfied:

(a) Prong A — Control: Agency is free from control and direction in connection with the performance of services, both under this Agreement and in fact.

(b) Prong B — Nature of Work: The services are performed outside the usual course of Client's business.

(c) Prong C — Independent Trade: Agency is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as the services performed.

Critical Warning: Massachusetts courts treat § 148B as strict liability — the intent of the parties and the existence of a written contract are not determinative. Failure to satisfy all three prongs results in employee classification regardless of the parties' agreement. Misclassification may result in liability under the Wage Act (M.G.L. c. 149, § 148), providing for treble damages, attorneys' fees, and criminal penalties. The Parties represent that the arrangement described herein satisfies all three prongs.

14.3 Operational Indicia of Independence

To support proper classification, the Parties represent and agree that the following factors are present:

☐ Agency maintains a separate business location apart from Client's premises
☐ Agency provides its own tools, equipment, and software
☐ Agency controls its own schedule, work hours, and methods of performance
☐ Agency bears the risk of profit or loss from its business
☐ Agency serves or is available to serve multiple clients simultaneously
☐ Agency carries its own business liability insurance
☐ Agency is registered as a business entity with the Commonwealth of Massachusetts
☐ Agency possesses its own federal employer identification number (EIN)
☐ Client's primary business is: [________________________________] (distinct from marketing services)

14.4 Tax Obligations

Agency shall be solely responsible for all federal, state, and local taxes, including self-employment taxes and Massachusetts income tax (M.G.L. c. 62). Client shall not withhold taxes from payments to Agency. Client shall report payments to Agency on IRS Form 1099-NEC as required by law.

14.5 No Benefits

Agency shall not be entitled to any employee benefits from Client, including but not limited to health insurance, retirement benefits, workers' compensation, or unemployment insurance.

15. DISPUTE RESOLUTION

15.1 Demand Letter Requirement

Under M.G.L. c. 93A, § 9(3), a consumer must send a demand letter at least 30 days before filing suit. Under § 11, a business claimant must send a demand letter at least 30 days before filing a 93A claim. The Parties acknowledge this statutory requirement.

15.2 Negotiation

The Parties shall attempt in good faith to resolve any dispute through direct negotiation between senior executives within [____] business days of written notice of the dispute.

15.3 Mediation

If negotiation fails, the Parties shall submit the dispute to non-binding mediation before a mutually agreed mediator in [________________________________], Massachusetts, with costs shared equally.

15.4 Litigation

If mediation fails, either Party may pursue litigation in the Superior Court of the Commonwealth of Massachusetts, [________________________________] County, or the U.S. District Court for the District of Massachusetts. Each Party consents to personal jurisdiction and venue in such courts.

15.5 Jury Waiver

☐ JURY TRIAL WAIVER: EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

☐ Jury Trial Preserved: The Parties preserve their respective rights to a trial by jury.

Massachusetts Note: Massachusetts courts will enforce jury waivers in commercial contracts where the waiver is clear, unambiguous, and knowing/voluntary.

15.6 Attorneys' Fees

The prevailing Party in any action arising out of this Agreement shall be entitled to recover its reasonable attorneys' fees and costs. Under M.G.L. c. 93A §§ 9 and 11, prevailing plaintiffs are entitled to attorneys' fees as a matter of statute.

16. GENERAL PROVISIONS

16.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law principles.

16.2 Force Majeure

Neither Party shall be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, government actions, war, terrorism, labor disputes, or interruption of telecommunications or internet services.

16.3 Notices

All notices under this Agreement shall be in writing and delivered by: (a) personal delivery; (b) certified mail, return receipt requested; (c) nationally recognized overnight courier; or (d) email with confirmation of receipt, to the addresses set forth above or as updated by written notice.

16.4 Entire Agreement

This Agreement, together with all SOWs and Exhibits, constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, and communications.

16.5 Amendments

This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties.

16.6 Assignment

Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets.

16.7 Severability

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

16.8 Waiver

The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or the right to enforce it at a later time.

16.9 Insurance

Agency shall maintain the following insurance coverage throughout the term:

☐ Commercial general liability: $[________________________________] per occurrence / $[________________________________] aggregate
☐ Professional liability (errors & omissions): $[________________________________] per claim
☐ Cyber liability / data breach coverage: $[________________________________] per incident
☐ Workers' compensation: As required by Massachusetts law
☐ Other: [________________________________]

16.10 Electronic Signatures

The Parties agree that this Agreement may be executed by electronic signature, which shall be deemed an original signature for all purposes pursuant to the Uniform Electronic Transactions Act as adopted in Massachusetts (M.G.L. c. 110G).

16.11 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

17. EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

AGENCY:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

CLIENT:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

EXHIBIT A — STATEMENT OF WORK TEMPLATE

SOW Number: [________________________________]
SOW Effective Date: [__/__/____]

1. Project Description:
[________________________________]

2. Services to Be Performed:
[________________________________]

3. Deliverables:

4. Campaign Channels:
☐ Digital (specify: ____________________) ☐ Print ☐ Broadcast ☐ Social Media ☐ Email ☐ Direct Mail ☐ Out-of-Home ☐ Other: [____________________]

5. Timeline:
Start Date: [__/__/____]
End Date: [__/__/____]
Key Milestones: [________________________________]

6. Fees:
[________________________________]

7. KPIs and Reporting:
[________________________________]

8. Approval Process:
☐ Client approval required before publication/launch
☐ Approval deemed given if no response within [____] business days

EXHIBIT B — FEE SCHEDULE

Payment Terms: Net [____] days
Late Payment Interest Rate: [____]% per annum

EXHIBIT C — BRAND GUIDELINES ACKNOWLEDGMENT

Agency acknowledges receipt of Client's Brand Guidelines dated [__/__/____] and agrees to adhere to such guidelines in all Creative Materials and Advertising Materials produced under this Agreement.

Agency Signature: [________________________________]
Date: [__/__/____]

EXHIBIT D — WISP COMPLIANCE CERTIFICATION (201 CMR 17.00)

Agency certifies that it has developed and implemented a comprehensive written information security program ("WISP") in compliance with 201 CMR 17.00 for the protection of Personal Information of Massachusetts residents. The WISP includes the following elements:

☐ Designation of employee(s) responsible for maintaining the WISP
☐ Identification and assessment of reasonably foreseeable internal and external risks to Personal Information
☐ Development of security policies for employees relating to storage, access, and transport of Personal Information
☐ Imposition of disciplinary measures for WISP violations
☐ Measures preventing terminated employees from accessing records containing Personal Information
☐ Third-party service provider oversight protocols requiring contractual data security obligations
☐ Physical access restrictions for records containing Personal Information
☐ Regular monitoring, review, and updating of the WISP (at least annually)
☐ Incident response procedures documented and tested
☐ Encryption of all Personal Information transmitted wirelessly or across public networks
☐ Encryption of all Personal Information stored on laptops or other portable devices
☐ Up-to-date firewall protection, operating system security patches, and malware protection
☐ Secure user authentication protocols (including control of user IDs and passwords)
☐ Reasonable monitoring of systems for unauthorized use or access

Agency Authorized Representative: [________________________________]
Title: [________________________________]
Date: [__/__/____]

This template is provided for informational purposes only and does not constitute legal advice. Consult a licensed Massachusetts attorney before use. Last updated: 2026-03-04.