MARKETING & ADVERTISING SERVICES AGREEMENT

(New York Jurisdiction)

[// GUIDANCE: This template is drafted for sophisticated B2B marketing and advertising engagements governed by New York law. It is intentionally over-inclusive to anticipate most commercial scenarios. Delete or modify any provisions that are unnecessary or inconsistent with your specific transaction or applicable law.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Scope of Services; Service Levels
4. Term; Renewal; Transition Assistance
5. Fees; Expenses; Taxes
6. Acceptance; Re-performance
7. Representations & Warranties
8. Covenants & Restrictions
9. Intellectual Property
10. Confidentiality; Data Security; Privacy Compliance
11. Indemnification
12. Limitation of Liability
13. Insurance
14. Force Majeure
15. Default; Remedies
16. Governing Law; Dispute Resolution
17. General Provisions
18. Execution Block

1. DOCUMENT HEADER

This Marketing & Advertising Services Agreement (this "Agreement") is entered into as of [EFFECTIVE DATE] (the "Effective Date"), by and between [CLIENT LEGAL NAME], a [STATE & ENTITY TYPE] ("Client"), and [SERVICE PROVIDER LEGAL NAME], a [STATE & ENTITY TYPE] ("Service Provider," and together with Client, each a "Party" and collectively, the "Parties").

Recitals
A. Client desires to retain Service Provider to provide certain marketing, advertising, and related consulting services.
B. Service Provider is willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

For purposes of this Agreement, capitalized terms have the meanings set forth below or elsewhere in this Agreement:

"Acceptance Criteria" - The objective performance standards, deliverable specifications, and success metrics set forth in Schedule A.

"Affiliate" - Any entity directly or indirectly controlling, controlled by, or under common control with a Party.

"Applicable Law" - All federal, state, provincial, local, and foreign laws, statutes, regulations, self-regulatory guidelines, and industry standards that apply to the Services, including but not limited to consumer protection, advertising, privacy, intellectual property, and anti-spam laws, and specifically including New York General Business Law, New York Executive Law, and the New York SHIELD Act.

"Background IP" - IP owned or developed by a Party independently of this Agreement.

"Campaign" - A defined marketing or advertising initiative described in a Statement of Work.

"Client Materials" - All information, content, data, trademarks, and other materials provided by Client to Service Provider.

"Confidential Information" - Has the meaning set forth in Section 10.1.

"Deliverables" - All work product, materials, reports, creative concepts, media plans, copy, graphics, and other items to be delivered by Service Provider under a Statement of Work.

"Force Majeure Event" - Has the meaning set forth in Section 14.1.

"Indemnified Party" - The Party entitled to indemnification under Section 11.

"Indemnifying Party" - The Party providing indemnification under Section 11.

"Intellectual Property Rights" or "IP Rights" - All worldwide intangible legal rights, titles, and interests, whether registered or unregistered, including patents, copyrights, trademarks, trade secrets, mask works, and all similar or analogous rights.

"Services" - The marketing, advertising, consulting, and related services described in Section 3 and each Statement of Work.

"Statement of Work" or "SOW" - A document, substantially in the form of Exhibit 1, executed by the Parties that describes a Campaign, Deliverables, timeline, and pricing.

"Third-Party Materials" - Content, software, tools, data, images, or other materials owned by third parties.

"Trade Secret" - Information that derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons and is subject to reasonable efforts to maintain its secrecy, as contemplated under the federal Defend Trade Secrets Act (18 U.S.C. Section 1836, et seq.) and New York common law.

[// GUIDANCE: Add, delete, or modify defined terms as needed to align with your actual transaction.]

3. SCOPE OF SERVICES; SERVICE LEVELS

3.1 Engagement. Client hereby retains Service Provider to provide, and Service Provider agrees to provide, the Services in accordance with this Agreement and each applicable SOW.

3.2 Statements of Work. (a) Each SOW shall become part of this Agreement when signed by both Parties. (b) In case of conflict, the SOW controls over this Agreement only with respect to that SOW.

3.3 Performance Standards. Service Provider shall:
(i) perform the Services in a professional and workmanlike manner, consistent with industry best practices;
(ii) meet or exceed the Acceptance Criteria and any service level guarantees set forth in Schedule B; and
(iii) comply with all Applicable Law, including the Federal Trade Commission Act, CAN-SPAM Act, Telephone Consumer Protection Act, New York General Business Law Sections 349-350 (deceptive practices and false advertising), and any self-regulatory codes (e.g., DAA, NAI).

3.4 Subcontractors. Service Provider may not subcontract the Services without Client's prior written consent, except for routine, ancillary tasks [e.g., media buying] performed by pre-approved vendors. Service Provider remains fully responsible for subcontractor acts and omissions.

3.5 Changes. Either Party may propose changes to a SOW. Changes are not binding unless memorialized in a written change order signed by authorized representatives of both Parties.

4. TERM; RENEWAL; TRANSITION ASSISTANCE

4.1 Initial Term. The term of this Agreement commences on the Effective Date and continues for [INITIAL TERM] (the "Initial Term"), unless earlier terminated in accordance with Section 15.

4.2 Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive [RENEWAL TERM] periods (each a "Renewal Term") unless either Party provides written notice of non-renewal at least [NOTICE PERIOD] days before the end of the then-current term.

4.3 Transition Assistance. For [TRANSITION PERIOD] following any termination or expiration, Service Provider shall provide reasonable transition assistance to Client or its designee at [RATE OR NO-CHARGE] to facilitate orderly transfer of projects, campaigns, and Deliverables.

5. FEES; EXPENSES; TAXES

5.1 Fees. Client shall pay Service Provider the fees set forth in each SOW (the "Fees").

5.2 Invoices & Payment. Service Provider shall invoice Client in accordance with the schedule set forth in the relevant SOW. Unless otherwise stated, Client shall pay undisputed amounts within [NET DAYS] days of receipt of invoice.

5.3 Expenses. Client shall reimburse pre-approved out-of-pocket expenses at cost, provided Service Provider supplies reasonable documentation.

5.4 Taxes. Fees exclude all applicable sales, use, value-added, and other taxes (collectively, "Taxes"). Each Party is responsible for its own income taxes. Client shall pay, or reimburse Service Provider for, any Taxes assessed on the Services, except Taxes based on Service Provider's net income.

5.5 Late Payments. Overdue amounts accrue interest at the lesser of [X]% per month or sixteen percent (16%) per annum, which is the maximum rate permitted under New York General Obligations Law Section 5-501 and New York Banking Law Section 14-a for civil usury violations.

[// GUIDANCE: New York civil usury cap is 16% per annum under GOL Section 5-501. Criminal usury (25% or more) applies under NY Penal Law Section 190.40. Corporate borrowers may be subject to different rules under GOL Section 5-521. Consult counsel.]

6. ACCEPTANCE; RE-PERFORMANCE

6.1 Review Period. Client shall review each Deliverable within [REVIEW DAYS] days of receipt ("Review Period") and either (a) accept it in writing, or (b) reject it by issuing a written notice describing in reasonable detail the non-conformities with the Acceptance Criteria.

6.2 Deemed Acceptance. Absent a timely rejection notice, the Deliverable is deemed accepted.

6.3 Cure. If Client timely rejects a Deliverable, Service Provider shall use commercially reasonable efforts to cure the non-conformities within [CURE DAYS] days and resubmit.

6.4 Exclusive Remedy. Re-performance under this Section 6 constitutes Client's sole remedy and Service Provider's entire liability for failure to meet Acceptance Criteria, subject to Section 12.

7. REPRESENTATIONS & WARRANTIES

7.1 Mutual Warranties. Each Party represents and warrants that:
(a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
(b) it has full power and authority to execute, deliver, and perform this Agreement;
(c) this Agreement constitutes its legal, valid, and binding obligation enforceable against it; and
(d) its performance hereunder does not violate any agreement or Applicable Law.

7.2 Service Provider Warranties. Service Provider further represents and warrants that:
(a) the Services and Deliverables will conform to the specifications and Acceptance Criteria;
(b) neither the Services nor Deliverables will infringe any third-party IP Rights; and
(c) the Services will be performed in compliance with Applicable Law, including New York law governing advertising, consumer protection, and data privacy.

7.3 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR PERFORMANCE OF ADVERTISING.

7.4 Survival. All warranties in this Section survive for [SURVIVAL PERIOD] following the later of delivery or acceptance of the applicable Deliverable.

8. COVENANTS & RESTRICTIONS

8.1 Compliance with Laws. Each Party shall comply with all Applicable Law, including laws governing deceptive advertising, endorsements, and data privacy, including New York General Business Law Sections 349 (deceptive acts and practices) and 350 (false advertising).

8.2 Non-Solicitation. During the Term and for [NON-SOLICIT] months thereafter, neither Party shall knowingly solicit for employment any employee of the other Party materially involved in the Services, except through general solicitations.

[// GUIDANCE: New York generally enforces reasonable non-solicitation provisions. Post-employment restrictive covenants are subject to scrutiny under New York Labor Law Section 191-d (effective 2024) and common law. Consult New York counsel.]

8.3 Exclusivity. [OPTIONAL] Client grants Service Provider exclusive rights to provide marketing services in [TERRITORY] for [EXCLUSIVITY TERM].

8.4 Notice of Breach. Each Party shall promptly notify the other of any known breach or suspected breach of its obligations under this Agreement, including data security incidents.

9. INTELLECTUAL PROPERTY

9.1 Ownership. Except as expressly provided, each Party retains all rights in its Background IP.

9.2 Work Made for Hire. To the extent permissible under Applicable Law, including the U.S. Copyright Act (17 U.S.C. Section 101), all Deliverables created specifically for Client under an SOW ("Client Deliverables") are deemed "work made for hire" for Client. To the extent not so deemed, Service Provider hereby irrevocably assigns to Client all right, title, and interest in such Client Deliverables upon full payment of all Fees due for the applicable Deliverables.

9.3 License to Background IP. Service Provider grants Client a perpetual, worldwide, royalty-free, non-exclusive license to use Service Provider's Background IP solely as incorporated in the Client Deliverables, to the extent necessary for Client's exploitation of the Deliverables.

9.4 License to Client Materials. Client grants Service Provider a limited, non-exclusive license to use Client Materials solely to perform the Services.

9.5 Third-Party Materials. Use of Third-Party Materials shall be governed by the applicable third-party license terms, which Service Provider shall provide to Client upon request.

9.6 Moral Rights. Service Provider waives, to the maximum extent permitted by law, any moral rights in the Deliverables.

10. CONFIDENTIALITY; DATA SECURITY; PRIVACY COMPLIANCE

10.1 Definition. "Confidential Information" means any non-public information disclosed by a Party ("Discloser") to the other ("Recipient") that is designated as confidential or would reasonably be understood as confidential given its nature and the circumstances of disclosure. Confidential Information includes Trade Secrets as protected under New York common law and the federal Defend Trade Secrets Act (18 U.S.C. Section 1836, et seq.).

10.2 Obligations. Recipient shall (a) use Confidential Information only to fulfill its obligations under this Agreement, (b) protect it with at least the same degree of care it uses for its own confidential information (but no less than reasonable care), and (c) not disclose it to any third party except to employees, Affiliates, and contractors with a need to know and subject to confidentiality obligations at least as protective.

10.3 Exclusions. Confidential Information does not include information that is (i) publicly available through no fault of Recipient, (ii) independently developed without use of Discloser's Confidential Information, (iii) rightfully obtained from a third party without breach, or (iv) disclosed pursuant to court order or law (provided Recipient gives reasonable notice and cooperates with Discloser's efforts to seek protective treatment).

10.4 Data Security. Service Provider shall implement and maintain industry-standard administrative, technical, and physical safeguards to protect Client data, consistent with the New York SHIELD Act (N.Y. Gen. Bus. Law Section 899-bb) and other applicable New York data security requirements.

10.5 Privacy Compliance. If the Services involve processing personal data, the Parties shall execute a data processing addendum ("DPA") compliant with Applicable Law (e.g., GDPR, applicable state privacy laws). Service Provider shall comply with the New York SHIELD Act and other applicable privacy requirements.

10.6 Publicity. Neither Party may issue press releases or public announcements referencing this Agreement without the other's prior written consent, except to the extent required by law.

10.7 Equitable Relief. Each Party acknowledges that violation of this Section 10 may cause irreparable harm and agrees that the other Party is entitled to seek injunctive relief without posting bond, in addition to all other remedies.

11. INDEMNIFICATION

11.1 Mutual Indemnity. Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its directors, officers, employees, and agents (collectively, the "Indemnified Party") from and against any and all third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") arising out of or relating to:
(a) bodily injury, death, or damage to real or tangible personal property caused by the Indemnifying Party's negligence or willful misconduct;
(b) the Indemnifying Party's breach of its representations, warranties, or covenants in this Agreement; or
(c) infringement or misappropriation of any IP Right by the Indemnifying Party's Deliverables or Background IP (for Service Provider) or Client Materials (for Client).

11.2 Procedures. The Indemnified Party shall promptly notify the Indemnifying Party of any claim, permit the Indemnifying Party to control the defense and settlement, and provide reasonable assistance at the Indemnifying Party's expense. The Indemnifying Party may not settle any claim without the Indemnified Party's prior written consent if it admits fault or imposes obligations on the Indemnified Party.

[// GUIDANCE: New York does not require specific express negligence language for indemnification. However, New York General Obligations Law Section 5-322.1 voids certain construction contract indemnity provisions for the indemnitee's own negligence. This limitation typically does not apply to marketing services agreements.]

12. LIMITATION OF LIABILITY

12.1 Caps. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED [CAP: e.g., 12x THE FEES PAID OR PAYABLE UNDER THE APPLICABLE SOW].

12.2 Excluded Claims. The following are excluded from the liability cap: (a) indemnification obligations under Section 11, (b) breaches of Section 10 (Confidentiality), (c) a Party's gross negligence or willful misconduct, and (d) infringement of IP Rights.

12.3 Disclaimer of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY.

[// GUIDANCE: Caps and exclusions are negotiable. Adjust amounts and carve-outs to align with risk allocation. Under New York law, limitations of liability are generally enforceable in commercial contracts between sophisticated parties.]

13. INSURANCE

Service Provider shall maintain, at its own expense, during the Term and for [INSURANCE SURVIVAL] years thereafter, insurance policies with minimum limits as follows:
(a) Commercial General Liability: [LIMIT] per occurrence;
(b) Errors & Omissions / Professional Liability: [LIMIT];
(c) Cyber / Network Security Liability: [LIMIT]; and
(d) Workers' Compensation as required by New York law.

Upon request, Service Provider shall furnish certificates of insurance naming Client as an additional insured (except for Workers' Compensation).

14. FORCE MAJEURE

14.1 Definition. "Force Majeure Event" means any event beyond a Party's reasonable control, including acts of God, natural disasters, terrorism, civil unrest, pandemics, labor disputes, government actions, or internet failures.

14.2 Suspension of Performance. A Party affected by a Force Majeure Event may suspend performance for the duration of the event, provided it (a) promptly notifies the other Party, (b) uses commercially reasonable efforts to mitigate the impact, and (c) resumes performance as soon as practicable.

14.3 Termination for Extended Force Majeure. If a Force Majeure Event continues for more than [FORCE MAJEURE DAYS] consecutive days, either Party may terminate the affected SOW or this Agreement upon written notice.

15. DEFAULT; REMEDIES

15.1 Events of Default. A Party is in default if it:
(a) materially breaches this Agreement and fails to cure within [CURE PERIOD] days after written notice;
(b) becomes insolvent, files for bankruptcy, or has a receiver appointed; or
(c) repeatedly fails to meet Acceptance Criteria or service levels, causing material harm.

15.2 Termination. Upon an uncured Event of Default, the non-defaulting Party may (i) terminate this Agreement and/or any SOW, in whole or in part, upon written notice, and (ii) pursue any remedies available at law or in equity, subject to Section 12.

15.3 Effect of Termination. Upon expiration or termination:
(a) Client shall pay Service Provider for all Services performed and authorized expenses incurred up to the termination date;
(b) each Party shall return or certify destruction of the other Party's Confidential Information; and
(c) Sections 7-13, 15.3, 16, and 17 survive.

15.4 Attorneys' Fees. The prevailing Party in any action to enforce this Agreement is entitled to recover its reasonable attorneys' fees and costs.

16. GOVERNING LAW; DISPUTE RESOLUTION

16.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. The Parties agree that New York General Obligations Law Sections 5-1401 and 5-1402 shall apply.

16.2 Forum Selection. Each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in [New York County (Manhattan) / Kings County], New York for any action arising out of or relating to this Agreement, subject to Section 16.3.

16.3 Optional Arbitration. [SELECT ONE]
- (a) Arbitration Elected - Any dispute, claim, or controversy arising out of or relating to this Agreement shall be finally resolved by confidential, binding arbitration administered by [JAMS / AAA] in accordance with its commercial arbitration rules. The seat of arbitration shall be New York, New York. Judgment on the award may be entered in any court of competent jurisdiction.
- (b) Arbitration Not Elected - The courts identified in Section 16.2 retain exclusive jurisdiction.

16.4 Jury Trial Waiver. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING PURSUANT TO N.Y. C.P.L.R. SECTION 4102.

[// GUIDANCE: Jury trial waivers are enforceable in New York. N.Y. C.P.L.R. Section 4102 permits parties to consent to a non-jury trial. Ensure the waiver is knowing, voluntary, and conspicuous.]

16.5 Injunctive Relief. Notwithstanding the foregoing, either Party may seek interim or permanent injunctive relief in any court of competent jurisdiction to protect its IP Rights or Confidential Information.

17. GENERAL PROVISIONS

17.1 Independent Contractors. The Parties are independent contractors. Nothing herein creates any partnership, joint venture, employment, or agency relationship.

17.2 Assignment. Neither Party may assign or transfer this Agreement without the other Party's prior written consent, except to an Affiliate or successor in connection with a merger, acquisition, or sale of substantially all assets, provided the assignee assumes all obligations herein in writing.

17.3 Amendments; Waivers. Any amendment or waiver must be in writing and executed by authorized representatives of both Parties. A waiver on one occasion is not a waiver of any subsequent breach.

17.4 Severability. If any provision is held unenforceable, the remainder will remain in full force, and the Parties shall substitute an enforceable provision that most closely approximates the original intent.

17.5 Entire Agreement. This Agreement, including all Schedules, Exhibits, and SOWs, constitutes the entire agreement between the Parties and supersedes all prior agreements regarding its subject matter.

17.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including via electronic signature or PDF exchange), each of which is deemed an original and all of which together constitute one instrument. Electronic signatures are valid and enforceable pursuant to the New York Electronic Signatures and Records Act (N.Y. State Tech. Law Article III) and the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sections 7001-7031).

17.7 Notices. All notices must be in writing and delivered by personal delivery, certified mail (return receipt requested), or nationally recognized courier to the addresses set forth below (or as updated by notice). Notices are effective on receipt.

17.8 Interpretation. Headings are for convenience only and do not affect interpretation. "Including" means "including without limitation."

18. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Marketing & Advertising Services Agreement as of the Effective Date.

[Notarization/Witness lines - [ADD IF REQUIRED BY INTERNAL POLICY]]

EXHIBIT 1 - FORM OF STATEMENT OF WORK

[// GUIDANCE: Use this form for each Campaign.]

1. SOW Number: [SOW-XXX]
2. Campaign Name: [Campaign Title]
3. Description of Services & Deliverables: [...]
4. Acceptance Criteria & Metrics: [...]
5. Timeline/Milestones: [...]
6. Fees & Payment Schedule: [...]
7. Key Client Responsibilities: [...]
8. Special Terms (if any): [...]

Authorized Representatives:
CLIENT Signature: ___________ Date: _______
SERVICE PROVIDER Signature: ___________ Date: _______

SCHEDULE A - ACCEPTANCE CRITERIA

[Define objective performance metrics, deliverable specifications, and any KPIs.]

SCHEDULE B - SERVICE LEVELS

[Define response times, availability, reporting cadence, etc.]

[// GUIDANCE: Delete unused exhibits/schedules prior to execution. Review all bracketed placeholders and optional sections for consistency with transaction specifics and New York law.]