Marketing & Advertising Services Agreement (Oregon)

MARKETING & ADVERTISING SERVICES AGREEMENT

(Oregon Jurisdiction)

CRITICAL OREGON LEGAL NOTICES:

• No Sales Tax: Oregon does not impose a general sales or use tax. Corporate Activity Tax (CAT) may apply to Service Provider's gross receipts (ORS 317A.100 et seq.).
• OCPA Privacy Law: Oregon Consumer Privacy Act (effective July 1, 2024) imposes data privacy obligations for marketing activities, including opt-out rights for targeted advertising and data sales. The cure period ends January 1, 2026, giving the AG immediate enforcement discretion.
• Reciprocal Attorney Fees: ORS 20.096 makes attorney fee provisions reciprocal -- if a contract allows fees to one party, the prevailing party (regardless of who is specified in the contract) is entitled to fees.
• Non-Compete Restrictions: ORS 653.295 significantly restricts non-compete agreements; they are enforceable only for employees earning above a specified income threshold (adjusted annually) and for a maximum of 12 months.
• Jury Trial Waiver: Enforceability is unsettled in Oregon. Oregon courts have not definitively ruled on the enforceability of pre-dispute jury waivers in civil commercial contracts.
• Interest Rate: 9% per annum (ORS 82.010).

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Scope of Services
4. Creative Ownership and Intellectual Property
5. Fees and Payment
6. Term and Termination
7. Client Obligations
8. Representations and Warranties
9. Advertising Law Compliance
10. Data Protection and Privacy
11. Confidentiality
12. Non-Compete / Non-Solicitation
13. Indemnification
14. Limitation of Liability
15. Independent Contractor Status
16. Dispute Resolution
17. General Provisions
18. Execution Block
    Exhibit A - Statement of Work
    Exhibit B - Fee Schedule
    Exhibit C - Service Level Standards

1. DOCUMENT HEADER

This Marketing & Advertising Services Agreement (this "Agreement") is entered into as of [__/__/____] (the "Effective Date"), by and between:

CLIENT:
Name: [________________________________]
Entity Type: [________________________________]
State of Formation: [________________________________]
Principal Address: [________________________________]
("Client")

SERVICE PROVIDER:
Name: [________________________________]
Entity Type: [________________________________]
State of Formation: [________________________________]
Principal Address: [________________________________]
("Service Provider")

(each a "Party" and collectively, the "Parties")

RECITALS

A. Client desires to engage Service Provider to perform marketing, advertising, and related creative services.

B. Service Provider possesses the skills and experience to perform such services in compliance with Oregon and federal law.

NOW, THEREFORE, in consideration of the mutual covenants herein, the Parties agree:

2. DEFINITIONS

"Acceptance Criteria" - Performance standards and metrics per the SOW or Exhibit C.

"Affiliate" - Entity controlling, controlled by, or under common control with a Party (50%+ ownership).

"Applicable Law" - All laws applicable to the Services, including: Oregon Unlawful Trade Practices Act (ORS 646.605 et seq.); Oregon Consumer Privacy Act (ORS 646A.570 et seq.); Oregon Consumer Identity Theft Protection Act (ORS 646A.600 et seq.); Oregon Trade Secrets Act (ORS 646.461 et seq.); FTC Act (15 U.S.C. § 45); FTC Endorsement Guides (16 C.F.R. Part 255); CAN-SPAM Act (15 U.S.C. § 7701 et seq.); TCPA (47 U.S.C. § 227).

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

"Campaign" - A marketing or advertising initiative per a SOW.

"Client Materials" - Information, content, trademarks, logos, and materials provided by Client.

"Confidential Information" - Per Section 11.1.

"Consumer Data" - Personal data as defined under OCPA (ORS 646A.570): data linked or reasonably linkable to an identified or identifiable individual, excluding de-identified or publicly available data.

"Deliverables" - Work product, creative materials, copy, graphics, designs, media plans, reports, analytics, and other items per a SOW.

"IP Rights" - All intellectual property rights worldwide, including patents, copyrights, trademarks, trade secrets, moral rights, and rights of publicity.

"Personal Information" - As defined under ORS 646A.602: a consumer's first name or first initial and last name in combination with specified data elements.

"Services" - Marketing, advertising, consulting, digital marketing, creative, media buying, analytics, and related services per Section 3 and SOWs.

"Statement of Work" / "SOW" - Document per Exhibit A, executed by both Parties.

"Third-Party Materials" - Content, tools, or materials owned by third parties.

"Trade Secret" - Per ORS 646.461: information deriving independent economic value from not being generally known and subject to reasonable secrecy efforts.

3. SCOPE OF SERVICES

3.1 Engagement. Client retains Service Provider for the Services per this Agreement and each SOW.

3.2 Statements of Work. Each SOW becomes part of this Agreement when signed. SOW controls in conflicts for its engagement.

3.3 Categories of Services.

☐ Brand strategy and development
☐ Creative design (print, digital, multimedia)
☐ Website design, development, and maintenance
☐ SEO and SEM
☐ PPC advertising management
☐ Social media marketing and management
☐ Email marketing (CAN-SPAM compliant)
☐ Content marketing and copywriting
☐ Video and multimedia production
☐ Public relations and media outreach
☐ Market research and competitive analysis
☐ Influencer marketing coordination
☐ Telemarketing (TCPA and Oregon law compliant)
☐ Direct mail campaigns
☐ Media planning and buying
☐ Analytics and performance measurement
☐ Reputation management
☐ Other: [________________________________]

3.4 Performance Standards. Service Provider shall:
(a) perform professionally consistent with industry standards;
(b) comply with Applicable Law, including Oregon UTPA (ORS 646.608) listing prohibited unlawful trade practices;
(c) meet Acceptance Criteria per SOW and Exhibit C;
(d) assign qualified personnel.

3.5 Subcontractors. No material subcontracting without Client's consent. Service Provider responsible for subcontractors.

3.6 Change Orders. Written change orders signed by both Parties.

4. CREATIVE OWNERSHIP AND INTELLECTUAL PROPERTY

4.1 Background IP. Each Party retains its Background IP.

4.2 Work Made for Hire. Deliverables are "works made for hire" under 17 U.S.C. § 101 to the maximum extent permitted, with rights vesting in Client.

4.3 Assignment. Where not works made for hire, Service Provider irrevocably assigns all rights to Client upon full payment. Service Provider shall execute documents to perfect the assignment.

4.4 License to Background IP. Perpetual, worldwide, royalty-free, non-exclusive, irrevocable license for Background IP incorporated in Deliverables.

4.5 License to Client Materials. Limited, non-exclusive, revocable license for Service Provider to use Client Materials during the Term.

4.6 Third-Party Materials. Service Provider identifies and secures necessary licenses for Client.

4.7 Moral Rights Waiver. Waived to maximum extent permitted.

4.8 Right of Publicity. Oregon recognizes a common-law right of publicity. Service Provider shall not use any individual's name, likeness, image, voice, or identity in Campaign materials without written consent. Service Provider shall maintain records of releases.

5. FEES AND PAYMENT

5.1 Fees. Per SOW and Exhibit B:

☐ Fixed project fee
☐ Monthly retainer
☐ Hourly rates
☐ Commission-based
☐ Performance-based
☐ Hybrid

5.2 Invoicing. Per SOW billing schedule with sufficient detail.

5.3 Payment Terms. Undisputed amounts within [____] days. Disputes within [____] days.

5.4 Expenses. Pre-approved expenses reimbursed upon documentation. Over $[____] requires prior approval.

5.5 Late Payments. Overdue undisputed amounts accrue interest at [____]% per annum, not to exceed 9% per annum, the legal rate under ORS 82.010(1). Parties may contract for a different rate. Judgments bear interest at 9% per annum (ORS 82.010(2)).

5.6 Taxes. Oregon does not impose a general sales or use tax. However, the Oregon Corporate Activity Tax (CAT, ORS 317A.100 et seq.) may apply to businesses with Oregon commercial activity exceeding $1 million. Service Provider is responsible for its own CAT obligations. Client is responsible for any applicable local taxes.

5.7 Media Costs. As specified in SOW. No markup without written agreement.

6. TERM AND TERMINATION

6.1 Initial Term. Commences on Effective Date; continues for [________________________________].

6.2 Renewal. Auto-renews for [________________________________] periods unless [____] days' written notice.

6.3 Termination for Convenience. Either Party upon [____] days' notice.

6.4 Termination for Cause. Immediate upon notice if:
(a) material breach not cured within [____] days;
(b) insolvency or bankruptcy;
(c) repeated material failure.

6.5 Effect of Termination.
(a) Client pays for performed Services;
(b) Service Provider delivers Deliverables and Client data;
(c) Confidential Information returned or destroyed within [____] days;
(d) Sections 2, 4, 5 (accrued), 8-14, 16, 17 survive.

6.6 Transition Assistance. Available for [____] days at then-current rates.

7. CLIENT OBLIGATIONS

7.1 Cooperation. Timely access to personnel, information, approvals, and Client Materials.

7.2 Timely Approvals. Within [____] business days.

7.3 Accuracy. Client Materials accurate, lawful, and non-infringing.

7.4 Designated Contact. Authorized primary contact.

7.5 Regulatory Information. Disclose applicable advertising regulations.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Warranties. (a) Duly organized and in good standing; (b) authority to execute; (c) binding obligation; (d) no violation.

8.2 Service Provider Warranties.
(a) Professional performance consistent with industry standards;
(b) Deliverables conform to Acceptance Criteria;
(c) no infringement;
(d) necessary licenses obtained;
(e) compliance with Oregon UTPA (ORS 646.608) and FTC Endorsement Guides.

8.3 Disclaimer. EXCEPT AS SET FORTH HEREIN, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS. NO GUARANTEE OF SPECIFIC RESULTS.

9. ADVERTISING LAW COMPLIANCE

9.1 General Compliance. All materials shall comply with:
(a) the FTC Act (15 U.S.C. § 45);
(b) the Oregon Unlawful Trade Practices Act (ORS 646.605 et seq.), particularly ORS 646.608 listing specific unlawful trade practices;
(c) FTC Endorsement Guides (16 C.F.R. Part 255);
(d) industry-specific rules.

9.2 Truthfulness and Substantiation. All claims truthful, non-deceptive, and substantiated.

9.3 Oregon UTPA Prohibited Practices (ORS 646.608). Service Provider shall not:
(a) pass off goods or services as those of another;
(b) misrepresent the source, sponsorship, or certification of goods or services;
(c) misrepresent the characteristics, ingredients, uses, benefits, or quantities of goods or services;
(d) misrepresent goods as original or new when reconditioned or used;
(e) represent that goods or services have sponsorship, approval, or affiliation they do not have;
(f) make false or misleading representations about price reductions;
(g) advertise goods or services with intent not to supply reasonably expectable demand;
(h) engage in any unfair or deceptive conduct in trade or commerce;
(i) make any representation that the subject of a consumer transaction has been supplied in accordance with a previous representation when it has not (ORS 646.608(1)(s));
(j) make false representations about the need for parts, replacement, or repair (ORS 646.608(1)(j)).

9.4 ORS 646.607 Violations. It is an unlawful practice for a person to employ any unconscionable tactic in connection with selling, renting, or disposing of real estate, goods, or services. Service Provider shall not employ unconscionable tactics in marketing activities.

9.5 Endorsements and Influencer Marketing.
(a) FTC Endorsement Guide compliance;
(b) clear disclosure of material connections;
(c) written influencer agreements;
(d) honest endorsements only.

9.6 Email Marketing (CAN-SPAM). Compliance with 15 U.S.C. § 7701 et seq.:
(a) accurate headers; (b) identification as advertising; (c) physical address; (d) opt-out within ten (10) business days; (e) suppression lists.

9.7 Telemarketing. If applicable:
(a) TCPA (47 U.S.C. § 227) and FCC rules;
(b) FTC Telemarketing Sales Rule;
(c) Oregon Telephone Solicitation Act (ORS 646.551 et seq.), including registration with the Oregon Department of Justice;
(d) Oregon and national Do-Not-Call registries;
(e) calling-hour restrictions;
(f) required disclosures.

9.8 Native Advertising. Clearly labeled as advertising.

9.9 Privacy-Related Advertising Notices. Under ORS 646.607(12), it is unlawful to publish a privacy notice that does not accurately reflect the business's data practices. Service Provider shall ensure all marketing privacy disclosures are accurate.

10. DATA PROTECTION AND PRIVACY

10.1 Data Collection. If Services involve Consumer Data or Personal Information:
(a) collect only necessary data;
(b) use only as authorized;
(c) maintain accurate privacy policy;
(d) obtain required consents.

10.2 Oregon Consumer Privacy Act (OCPA, ORS 646A.570-646A.589). Effective July 1, 2024, OCPA requires:

(a) Consumer Rights: Consumers have the right to: (i) confirm whether a controller processes their data; (ii) obtain a copy of their data; (iii) correct inaccuracies; (iv) delete data; (v) obtain data in a portable format; (vi) opt out of processing for targeted advertising, sale of personal data, and profiling.

(b) Targeted Advertising Opt-Out: Service Provider shall honor consumer requests to opt out of targeted advertising. Service Provider shall implement mechanisms to process opt-out requests.

(c) Universal Opt-Out Mechanisms: Effective January 1, 2026, businesses must recognize and honor universal opt-out signals (e.g., Global Privacy Control).

(d) Sensitive Data: Opt-in consent required before processing sensitive data, including data revealing racial or ethnic origin, religious beliefs, health conditions, sexual orientation, citizenship status, biometric or genetic data, and precise geolocation.

(e) Children's Data: Personal data of consumers under 16 cannot be sold or used for targeted advertising. After January 1, 2026, sale of data of minors is banned.

(f) Precise Geolocation Data: After January 1, 2026, sale of precise geolocation data is prohibited.

(g) Data Protection Assessments: Controllers must conduct and document data protection assessments before processing for targeted advertising, selling personal data, or profiling.

(h) Enforcement: Oregon DOJ enforces OCPA. The cure period ended January 1, 2026; DOJ has discretion to bring enforcement actions without providing a cure opportunity. Penalties up to $7,500 per violation.

Service Provider shall assist Client in compliance with OCPA obligations related to marketing.

10.3 Oregon Identity Theft Protection Act (ORS 646A.600 et seq.). Service Provider shall:
(a) implement safeguards to protect Personal Information;
(b) notify affected individuals and the Oregon Attorney General within the time required by ORS 646A.604 (no later than 45 days) following discovery of a breach;
(c) properly dispose of records containing Personal Information (ORS 646A.622).

10.4 Marketing Data. Service Provider shall:
(a) comply with OCPA opt-out and targeted advertising rules;
(b) maintain suppression lists;
(c) not sell consumer data without compliance with OCPA;
(d) honor universal opt-out mechanisms;
(e) process data of consumers under 16 only with verifiable parental consent.

10.5 Breach Notification to Client. Notify Client within [____] hours of discovery.

10.6 Data Return. Return or destroy within [____] days of termination; certify in writing.

11. CONFIDENTIALITY

11.1 Definition. Non-public information designated or reasonably understood as confidential, including Trade Secrets, business plans, customer lists, strategies, and pricing.

11.2 Obligations. (a) Use only for Agreement purposes; (b) reasonable care; (c) limit disclosure to personnel with need-to-know under equivalent obligations.

11.3 Exclusions. (a) Publicly available; (b) previously possessed; (c) independently developed; (d) received without restriction; (e) required by law (with notice).

11.4 Duration. Trade Secret obligations continue per ORS 646.461. Other obligations: [____] years.

11.5 Equitable Relief. Injunctive relief available per Oregon Rules of Civil Procedure.

11.6 DTSA Notice. Per 18 U.S.C. § 1833(b), no liability for confidential disclosures for reporting or sealed filings.

12. NON-COMPETE / NON-SOLICITATION

IMPORTANT OREGON NOTICE: ORS 653.295 restricts non-competition agreements. A non-competition agreement is voidable and unenforceable unless:
(a) the employer/principal informs the employee/contractor in writing at the time of making an offer or at least two weeks before commencing employment that a non-compete will be required;
(b) the employee/contractor is engaged in administrative, professional, or executive work (under ORS 653.020(3)) AND earns above a specified annual income threshold (adjusted periodically; consult current ORS 653.295 for the threshold);
(c) the non-compete does not exceed twelve (12) months; and
(d) the employer has a protectable interest (trade secrets, specialized training, or competitively sensitive information).

Non-solicitation agreements are generally treated more favorably but must still be reasonable.

12.1 Non-Solicitation of Employees. During the Term and for [____] months thereafter, neither Party shall solicit, recruit, or hire employees or contractors of the other materially involved in the Services. General advertisements are excluded.

12.2 Non-Solicitation of Clients. During the Term and for [____] months thereafter, Service Provider shall not directly solicit Client's customers discovered through the Services.

12.3 Non-Compete. [SELECT ONE]

☐ Non-Compete Included: During the Term and for a maximum of twelve (12) months thereafter (per ORS 653.295), Service Provider shall not provide substantially similar services to direct competitors of Client in [________________________________].

COMPLIANCE REQUIREMENTS: This non-compete is enforceable only if: (i) Service Provider was informed of this requirement at or before the time of contracting; (ii) the restricted individuals meet the income threshold under ORS 653.295; (iii) the restriction does not exceed 12 months; and (iv) Client has a protectable interest. Consult Oregon counsel.

☐ Non-Compete Not Included.

12.4 Trade Secret Protection. Nothing limits enforcement of Trade Secret protections under ORS 646.461 et seq. or the Defend Trade Secrets Act.

13. INDEMNIFICATION

13.1 Service Provider Indemnity. Service Provider indemnifies Client from Losses arising from:
(a) breach of this Agreement;
(b) IP infringement by Deliverables;
(c) violation of Applicable Law, including Oregon UTPA and OCPA;
(d) negligence or willful misconduct;
(e) mishandling of Consumer Data or Personal Information.

13.2 Client Indemnity. Client indemnifies Service Provider from Losses arising from:
(a) Client's breach;
(b) infringement by Client Materials;
(c) inaccuracy of Client-provided claims;
(d) Client's negligence or willful misconduct.

13.3 Procedures. Prompt notice; control of defense; cooperation. No settlement admitting fault without consent.

14. LIMITATION OF LIABILITY

14.1 Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S TOTAL LIABILITY SHALL NOT EXCEED [________________________________].

14.2 Excluded Claims. (a) Indemnification; (b) Section 10-11 breaches; (c) IP infringement; (d) gross negligence, willful misconduct, fraud; (e) Fee payment.

14.3 Consequential Damages. NO LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED.

14.4 Essential Basis. Limitations reflect fair risk allocation.

15. INDEPENDENT CONTRACTOR STATUS

15.1 Relationship. Service Provider is an independent contractor.

15.2 No Authority. Cannot bind Client.

15.3 Oregon Classification. Oregon uses a multi-factor test under ORS 670.600, which establishes a presumption of independent contractor status if the worker meets specific criteria, including: (a) freedom from direction and control; (b) responsibility for obtaining necessary business licenses; (c) furnishing tools and equipment; (d) authority to hire employees; (e) maintaining a business location separate from the principal; (f) assuming financial risk; (g) having an established independently marketable business; (h) operating under a contract specifying independent contractor status; and (i) providing services for two or more clients within a 12-month period or holding itself out to the public as available. Service Provider represents compliance with ORS 670.600.

15.4 Tax Obligations. Service Provider responsible for all taxes, including Oregon state income tax. Client issues Form 1099-NEC.

15.5 No Benefits. No employee benefits from Client.

15.6 Workers' Compensation. Service Provider maintains coverage per ORS 656.017 et seq.

16. DISPUTE RESOLUTION

16.1 Governing Law. Laws of the State of Oregon, without conflict-of-laws principles.

16.2 Informal Resolution. Good-faith negotiation for [____] days.

16.3 Forum Selection. Exclusive jurisdiction in the Circuit Court of [____] County, Oregon, and the United States District Court for the District of Oregon.

16.4 Arbitration. [SELECT ONE]

☐ Arbitration Elected: Binding arbitration by [AAA/JAMS] in [________________________________], Oregon.

☐ Arbitration Not Elected.

16.5 Jury Trial Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES JURY TRIAL.

OREGON PRACTICE NOTE: The enforceability of pre-dispute contractual jury trial waivers in Oregon is unsettled. Oregon courts have not definitively addressed this issue. Parties should consult Oregon counsel and may wish to consider arbitration as a more certain alternative to litigation without a jury.

16.6 Injunctive Relief. Either Party may seek injunctive relief to protect IP, Confidential Information, or Trade Secrets per Oregon Rules of Civil Procedure.

16.7 Attorney Fees - ORS 20.096 Reciprocity. This Agreement provides for recovery of reasonable attorney fees and costs by the prevailing Party in any action to enforce this Agreement. Pursuant to ORS 20.096, in any action on a contract that provides for attorney fees to one party, the prevailing party is entitled to attorney fees regardless of whether the prevailing party is the party specified in the contract. This provision is non-waivable under ORS 20.096(3).

16.8 Statute of Limitations. Written contract: six (6) years (ORS 12.080).

17. GENERAL PROVISIONS

17.1 Notices. Written, via personal delivery, certified mail, overnight courier, or confirmed email.

17.2 Assignment. No assignment without consent, except to Affiliate or successor.

17.3 Force Majeure. No liability for causes beyond reasonable control. Termination available after [____] days.

17.4 Severability. Invalid provisions severed; remainder continues.

17.5 Entire Agreement. This Agreement plus Exhibits and SOWs.

17.6 Amendments. Written, signed by both Parties.

17.7 Counterparts and Electronic Signatures. Valid under the Oregon Uniform Electronic Transactions Act (ORS Ch. 84) and federal ESIGN Act.

17.8 Insurance. Service Provider maintains:
(a) CGL: $[________________________________] per occurrence;
(b) E&O: $[________________________________];
(c) Cyber: $[________________________________];
(d) Workers' Compensation per Oregon law.
Certificates upon request.

17.9 Publicity. No use of other Party's name or marks without consent.

17.10 Interpretation. Headings for convenience. "Including" means "including without limitation."

17.11 No Third-Party Beneficiaries. Benefits Parties and permitted assigns only.

17.12 Oregon-Specific Tax Note. Oregon does not impose a general sales tax. Neither Party shall charge the other sales tax in connection with this Agreement. Service Provider is responsible for Oregon Corporate Activity Tax (CAT) obligations on its own commercial activity.

18. EXECUTION BLOCK

IN WITNESS WHEREOF, executed as of the Effective Date.

EXHIBIT A - STATEMENT OF WORK

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

1. Description of Services: [________________________________]

2. Deliverables:

3. Timeline: [________________________________]
4. Fees: [________________________________]
5. Client Responsibilities: [________________________________]
6. Special Terms: [________________________________]

EXHIBIT B - FEE SCHEDULE

Monthly Retainer: $[________________________________]
Media Commission: [____]%
Performance Bonuses: [________________________________]

EXHIBIT C - SERVICE LEVEL STANDARDS

Reporting:
☐ Weekly reports
☐ Monthly dashboard
☐ Quarterly reviews

KPIs: [________________________________]

This template is for informational purposes only. Have it reviewed by a qualified Oregon attorney. Oregon's no-sales-tax status, OCPA privacy law, ORS 20.096 reciprocal fees, unsettled jury waiver law, and strict non-compete limits are critical provisions requiring careful attention.