Marketing & Advertising Services Agreement (Vermont)

MARKETING & ADVERTISING SERVICES AGREEMENT

STATE OF VERMONT

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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 ☐ B Corporation
State of Formation: [________________________________]
Vermont Business Registration No.: [________________________________]
("Agency")

AND

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

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

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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; and

WHEREAS, the Parties acknowledge that all marketing activities shall comply with the Vermont Consumer Protection Act (9 V.S.A. Ch. 63), applicable federal advertising law, and Vermont data privacy requirements;

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:

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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 "Brokered Personal Information" means, as referenced in 9 V.S.A. § 2446, one or more computerized data elements about a consumer, if categorized or organized for sale or licensing to third parties, including name, address, date of birth, place of birth, mother's maiden name, biometric information, Social Security number, or other information that alone or in combination can reasonably be linked to a specific consumer.

1.4 "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.

1.5 "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 9 V.S.A. § 4601), business plans, marketing strategies, customer lists, pricing data, financial information, creative concepts, campaign performance data, and analytics.

1.6 "Consumer Data" means any personally identifiable information about Vermont consumers or other individuals collected, processed, or used in connection with marketing activities under this Agreement.

1.7 "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.

1.8 "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.

1.9 "Environmental Marketing Claim" means any representation, express or implied, that a product, service, or practice is environmentally beneficial or less harmful to the environment, subject to the FTC Green Guides (16 C.F.R. Part 260) and Vermont consumer protection standards.

1.10 "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.

1.11 "Personal Information" has the meaning set forth in 9 V.S.A. § 2430(5), including a consumer's first name or first initial and last name in combination with one or more of the following: Social Security number, driver license or state identification number, financial account number (with any required access code), or login credentials for an online account.

1.12 "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.

1.13 "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.

1.14 "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.

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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
☐ Environmental and sustainability marketing
☐ 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.

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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

Select one:

☐ 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 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.

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4. FEES AND PAYMENT

4.1 Fee Structure

Select applicable structure(s):

☐ Monthly Retainer: $[________________________________] per month for services described in the applicable SOW
☐ 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. Client shall be responsible for media costs, which shall be invoiced separately from Agency service fees.

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, provided that such rate shall not exceed the maximum rate permitted under 9 V.S.A. § 41a. If no rate is specified, the legal rate of 12% per annum under 9 V.S.A. § 41a shall apply. In the event of non-payment exceeding [____] days past due, Agency may, upon [____] days' written notice, suspend services until payment is received in full.

Vermont Interest Rate Note: Under 9 V.S.A. § 41a, the legal rate of interest in Vermont is 12% per annum computed by the actuarial method. Prejudgment interest in contract actions also accrues at 12% per annum under 12 V.S.A. § 2903. Vermont usury laws cap consumer interest at 12% per annum absent an exemption, but business-to-business contracts may specify a different rate. A lender who knowingly charges in excess of the legal rate forfeits the right to collect any interest and may recover only one-half of the principal (9 V.S.A. § 50).

4.6 Taxes

Fees under this Agreement do not include applicable taxes. Client shall be responsible for all applicable state and local taxes, excluding taxes based on Agency's income. Vermont imposes a 6% general sales and use tax (32 V.S.A. § 9771), and certain advertising services may be subject to tax. The Parties shall determine the taxability of specific services on a per-SOW basis.

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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 (Advertising Law Compliance), 10 (Data Protection), 12 (Indemnification), 13 (Limitation of Liability), and 16 (General Provisions) shall survive termination or expiration of this Agreement.

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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 included in approved materials.

6.3 Regulatory Information

Client shall promptly inform Agency of any regulatory requirements, restrictions, or guidelines specific to Client's industry that may affect the services, including any FTC consent decrees, corrective advertising orders, Vermont Attorney General enforcement actions, or pending investigations.

6.4 Environmental and Sustainability Claims

If Client requests Environmental Marketing Claims in any Advertising Materials, Client shall provide Agency with: (a) documentation substantiating all environmental claims; (b) scientific data, certifications, or third-party audit results supporting such claims; and (c) prompt notice of any changes that affect the accuracy of environmental representations. Client acknowledges that unsubstantiated green marketing claims may violate both the FTC Green Guides (16 C.F.R. Part 260) and Vermont's Consumer Protection Act.

Vermont Practitioner Note: Vermont consumers and regulators are particularly attentive to environmental marketing claims. Businesses making "green," "sustainable," "eco-friendly," or similar claims should ensure full compliance with FTC Green Guides and maintain robust substantiation files. The Vermont Attorney General's Consumer Assistance Program has authority to investigate and pursue deceptive environmental advertising.

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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 — Vermont Uniform Trade Secrets Act (9 V.S.A. Ch. 143)

The Parties acknowledge that certain Confidential Information may constitute trade secrets under the Vermont Uniform Trade Secrets Act (9 V.S.A. §§ 4601-4609) and/or the federal Defend Trade Secrets Act (18 U.S.C. § 1836). Under 9 V.S.A. § 4601:

(a) Definition: A "trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

(b) Improper Means: "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

(c) Remedies: The Vermont UTSA provides for injunctive relief for actual or threatened misappropriation (9 V.S.A. § 4602), damages including unjust enrichment and reasonable royalty (9 V.S.A. § 4603), and exemplary damages up to twice the award for willful and malicious misappropriation (9 V.S.A. § 4604).

(d) Statute of Limitations: Three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered (9 V.S.A. § 4607).

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 under 9 V.S.A. § 4601.

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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; (d) Agency shall comply with all applicable advertising and marketing laws, including the FTC Act and the Vermont Consumer Protection Act (9 V.S.A. § 2453); and (e) Agency personnel assigned to perform services possess the qualifications and experience described in the applicable SOW.

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.

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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. Claims shall have a reasonable basis prior to dissemination.

(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 between endorsers and Client.

(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 Telephone Consumer Protection Act, including obtaining prior express written consent for autodialed or prerecorded calls and texts to mobile numbers.

(e) FTC Green Guides (16 C.F.R. Part 260): All Environmental Marketing Claims shall comply with the FTC's Guides for the Use of Environmental Marketing Claims, including requirements that: environmental claims be specific and substantiated; general environmental benefit claims be avoided unless all material impacts are addressed; qualifications and disclosures be clear, prominent, and in close proximity to the claim; and certifications and seals of approval are not used in a deceptive manner.

9.2 Vermont Consumer Protection Act Compliance (9 V.S.A. Ch. 63)

(a) Prohibited Practices (9 V.S.A. § 2453): All marketing activities shall comply with Vermont's prohibition on unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. The Vermont Attorney General adopts rules relating to unfair methods of competition and unfair or deceptive acts that are not inconsistent with Federal Trade Commission rules and decisions. A violation of a rule adopted by the Attorney General is prima facie proof of an unfair or deceptive act in commerce.

(b) Specific Advertising Prohibitions: Agency shall not create or disseminate Advertising Materials that:

• Represent that goods or services have characteristics, uses, benefits, or quantities they do not have
• Represent that goods or services are of a particular standard, quality, or grade when they are not
• Advertise goods or services with intent not to sell them as advertised (bait-and-switch)
• Make false or misleading statements concerning price reductions or comparisons
• Fail to fully disclose material exclusions, reservations, limitations, modifications, or conditions in any solicitation through advertising
• Advertise or promise prompt delivery without reasonable action to ensure prompt delivery
• Conduct or advertise liquidation, going-out-of-business, or similar sales in violation of applicable Vermont regulations

(c) Enforcement and Penalties: The Vermont Attorney General or a state's attorney may seek civil penalties of up to $10,000 per violation, orders for restitution, and reimbursement of investigation and prosecution expenses. The Attorney General may also seek injunctive relief.

(d) Private Remedies (9 V.S.A. § 2461): Consumers injured by violations of the Consumer Protection Act may bring private actions and recover actual damages or $200, whichever is greater. The court may award reasonable attorneys' fees and costs.

(e) Vermont Consumer Protection Rules: Agency shall comply with all Consumer Protection Rules adopted by the Vermont Attorney General pursuant to 9 V.S.A. § 2453(c), including rules governing specific advertising practices, disclosures, deceptive pricing (Consumer Protection Rule CF 110), and industry-specific standards.

9.3 Environmental Marketing Claims — Vermont Considerations

Given Vermont's strong environmental identity and heightened consumer awareness, the Parties shall exercise particular diligence with Environmental Marketing Claims. Agency shall:

(a) Ensure all green claims are specific and qualified (e.g., distinguishing between "recyclable" packaging vs. "recyclable" product);

(b) Avoid unqualified general environmental benefit claims such as "eco-friendly" or "green" unless supported by competent and reliable scientific evidence addressing all material environmental impacts;

(c) Clearly disclose any material limitations or conditions applicable to environmental claims;

(d) Maintain substantiation files for all Environmental Marketing Claims, available for Client and regulatory review;

(e) If Client holds certifications (e.g., B Corp, USDA Organic, Green Business Vermont, Energy Star), accurately represent the scope and meaning of such certifications without overstating the environmental benefit; and

(f) Ensure carbon-neutral, carbon-negative, net-zero, and similar climate claims are substantiated by competent, reliable evidence and clearly qualified as to scope, timeline, and methodology.

9.4 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.

9.5 Substantiation

Agency shall not create or disseminate any advertising claim on behalf of Client unless Client has provided adequate substantiation for such claim. Client shall be responsible for maintaining substantiation files for all factual claims.

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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 Vermont Data Broker Regulation (9 V.S.A. § 2446 et seq. — Act 171 of 2018)

(a) Data Broker Status: Vermont was the first state in the nation to require data broker registration. If Agency's marketing activities on behalf of Client involve the collection and sale or licensing of Brokered Personal Information of consumers with whom Agency does not have a direct relationship, Agency may be classified as a "data broker" under Vermont law. If so classified, Agency shall register annually with the Vermont Secretary of State by January 31 of each year and pay the required $100 filing fee.

(b) Required Disclosures: A registered data broker must disclose whether it: (i) permits consumers to opt out of collection of Brokered Personal Information; (ii) permits consumers to opt out of the data broker's databases; or (iii) permits consumers to opt out of certain sales of data.

(c) Security Requirements: Agency shall develop, implement, and maintain a comprehensive written information security program containing administrative, technical, and physical safeguards appropriate to the nature and scope of its data brokerage activities.

(d) Acquisition of Data Through Fraud: A person shall not acquire, through fraudulent means or with knowledge that it was fraudulently obtained, Brokered Personal Information about a Vermont consumer for purposes of stalking or harassing, committing fraud, or engaging in unlawful discrimination.

(e) Penalties: Failure to register as a data broker subjects Agency to civil penalties of $50 per day, not to exceed $10,000 per year of non-registration.

Practitioner Note: Marketing agencies that collect consumer data for targeted advertising campaigns should carefully evaluate whether their activities constitute "data brokerage" under Vermont's first-in-the-nation law. The definition turns on whether the agency collects and sells or licenses personal information of consumers with whom it has no direct relationship. Consult Vermont counsel for a case-specific analysis.

10.3 Vermont Security Breach Notice Act (9 V.S.A. § 2435)

(a) Notification to Client: In the event of a security breach (as defined in 9 V.S.A. § 2430) involving Personal Information or login credentials maintained by Agency in connection with marketing activities, Agency shall notify Client within [____] hours of discovery.

(b) Notification to Consumers: Notice to affected consumers shall be made in the most expedient time possible and without unreasonable delay, but not later than 45 days after discovery of the breach (9 V.S.A. § 2435(b)).

(c) Notification to Attorney General: Notice to the Vermont Attorney General shall be provided within 14 business days of discovery of the breach or when notice is provided to consumers, whichever is earlier (9 V.S.A. § 2435(b)(5)).

(d) Content of Notice: Consumer notification shall include: a description of the breach, the date of the breach, the type of Personal Information compromised, contact information for the reporting entity, a toll-free number and address for major credit reporting agencies, and advice to the consumer to report suspected identity theft to law enforcement.

(e) Cooperation: The Parties shall cooperate in investigating and remediating any data breach, complying with notification requirements, and mitigating harm to affected individuals.

10.4 Vermont Right of Privacy — Appropriation of Likeness

(a) Vermont recognizes the common-law tort of appropriation of name or likeness for commercial purposes. A plaintiff need not be famous to bring a claim, but must show harm from the defendant's conduct and that the defendant benefited from the use of the plaintiff's identity.

(b) Agency shall not use the name, image, voice, or likeness of any identifiable individual in Advertising Materials without obtaining proper written consent and release.

(c) Consent forms shall specify the scope and duration of authorized use, the media channels in which the likeness may appear, and any compensation to be paid.

(d) Agency shall maintain copies of all signed releases and make them available to Client upon request.

10.5 Social Security Number Protection (9 V.S.A. § 2440)

Agency shall not use Social Security numbers in marketing materials, require consumers to transmit their Social Security number over the Internet unless the connection is secure, or print a Social Security number on materials mailed to consumers, except as otherwise required or permitted by law.

10.6 Data Security Standards

Agency shall implement and maintain reasonable administrative, technical, and physical safeguards to protect Consumer Data and Client Confidential Information against unauthorized access, disclosure, or destruction. Such safeguards shall be consistent with the requirements of 9 V.S.A. § 2446(a)(3) and industry best practices. Failure to maintain reasonable data security constitutes an unfair or deceptive act under Vermont's Consumer Protection Act.

10.7 Data Return and 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 within [____] days.

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11. NON-COMPETE AND NON-SOLICITATION

11.1 Vermont Non-Compete Landscape

The Parties acknowledge the following regarding non-compete agreements under Vermont law:

(a) Common-Law Standard: Vermont courts historically evaluate non-compete agreements under a reasonableness standard, requiring that restrictions be: (i) supported by adequate consideration; (ii) reasonably limited in scope, duration, and geography; and (iii) necessary to protect a legitimate business interest such as trade secrets, confidential information, or customer relationships.

(b) Legislative Developments: Vermont has considered legislation that would significantly restrict or prohibit non-compete agreements, with limited exceptions for business sales, partnership dissolutions, and certain high-earning employees. Agency and Client shall ensure that any restrictive covenants in this Agreement remain enforceable under current Vermont law as of the Effective Date and shall amend this Agreement if necessary to conform to changes in law.

(c) Trade Secret Protections Preserved: Nothing in Vermont non-compete law restricts agreements that prohibit the disclosure of trade secrets (9 V.S.A. Ch. 143).

(d) Specific Industry Prohibitions: Vermont law prohibits non-competes in the cosmetology and barbering industries (26 V.S.A. § 3108). This provision does not directly apply to marketing services but reflects a legislative trend toward restricting non-compete enforceability.

Practitioner Note: Vermont's non-compete landscape is evolving. Counsel should verify the current status of pending legislation before relying on non-compete provisions. This Agreement intentionally favors non-solicitation and confidentiality protections over broad non-compete restrictions as the more durable and enforceable approach in Vermont.

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 not targeted at specific individuals.

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 operating in [________________________________].

☐ Limited Restriction: During the term and for [____] months thereafter, Agency shall not provide substantially similar services to the following named competitors: [________________________________]. This restriction is limited to the geographic area of [________________________________] and is intended to protect Client's trade secrets and confidential marketing strategies shared with Agency.

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.

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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; (c) Agency's negligence or willful misconduct; (d) Agency's breach of data protection obligations under Section 10; or (e) 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; (d) unsubstantiated claims that Client directed Agency to include in Advertising Materials; or (e) 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 with the indemnifying Party 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.

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13. LIMITATION OF LIABILITY

13.1 Cap on Liability

EXCEPT FOR OBLIGATIONS UNDER SECTIONS 7 (CONFIDENTIALITY), 10 (DATA PROTECTION), 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 OR WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY THEREOF.

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 obligations; (c) Agency's infringement of Client's intellectual property rights; (d) damages arising from a Party's fraud, gross negligence, or willful misconduct; or (e) liability arising from violations of the Vermont Consumer Protection Act or data breach obligations under 9 V.S.A. § 2435.

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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 Vermont Independent Contractor Classification

Vermont applies different classification tests depending on the statutory context. The Parties intend that Agency satisfies all applicable tests:

(a) ABC Test (21 V.S.A. Ch. 17 — Unemployment Insurance): For unemployment insurance purposes, the Vermont Department of Labor presumes an employment relationship exists unless the hiring entity demonstrates all three prongs of the ABC test are satisfied:

• Prong A — Freedom from Control: Agency is free from the control and direction of Client in the performance of services, both under this Agreement and in fact. Client may specify desired results but shall not control the manner or means by which Agency performs the work.
• Prong B — Outside Usual Course of Business: The services are performed outside the usual course of Client's business, or are performed outside all of the places of Client's business.
• Prong C — Independently Established Trade: Agency is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as the services performed under this Agreement.

(b) Workers' Compensation (21 V.S.A. § 601): For workers' compensation purposes, Vermont uses the "right to control" test and the "nature of the business" test. The inquiry focuses on whether the employer has the right to control the manner, means, and details of the work.

(c) Written Agreement (21 V.S.A. § 601(14)(J)): A written agreement signed by both parties that explicitly states the individual is not an employee, is working independently, has no employees, and has not contracted with other independent contractors, together with information regarding the right to purchase workers' compensation insurance and the individual's election not to purchase coverage, constitutes evidence of independent contractor status.

14.3 Indicia of Independent Contractor Status

The Parties represent and affirm that the following characteristics of the engagement support independent contractor classification:

☐ Agency possesses a federal employer identification number (FEIN)
☐ Agency maintains a separate business with its own office, equipment, and materials
☐ Agency bears the risk of profit or loss from providing services
☐ Agency has continuing or recurring business liabilities or obligations
☐ Agency's success or failure depends on the relationship of receipts to expenditures
☐ Agency performs services for multiple clients or holds itself out to the general public
☐ Agency has an investment in tools, equipment, or services used in performing work
☐ Agency is free to determine the manner and method of performing services
☐ Agency is not required to work exclusively for Client
☐ Agency may hire and fire its own employees or subcontractors
☐ Services are performed pursuant to this written agreement

14.4 Tax Obligations

Agency shall be solely responsible for all federal, state, and local taxes, including self-employment taxes and Vermont income taxes. 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.

14.6 Misclassification Risk

The Parties acknowledge that the Vermont Department of Labor actively investigates worker misclassification and may impose monetary penalties for each improperly classified worker. Debarment periods of one to three years may apply. Both Parties shall cooperate to maintain documentation supporting Agency's independent contractor status.

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15. DISPUTE RESOLUTION

15.1 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.

15.2 Mediation

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

15.3 Litigation

Select applicable forum:

☐ Vermont Superior Court, [________________________________] County (e.g., Chittenden, Washington, Windham, Rutland)
☐ United States District Court for the District of Vermont
☐ Either state or federal court at the election of the filing Party

Each Party consents to personal jurisdiction and venue in the selected court(s).

15.4 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.

15.5 Attorneys' Fees

Select one:

☐ The prevailing Party in any action arising out of this Agreement shall be entitled to recover its reasonable attorneys' fees and costs.
☐ Each Party shall bear its own attorneys' fees and costs regardless of outcome, except as provided by statute (including 9 V.S.A. § 2461(b) in consumer protection actions).

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16. GENERAL PROVISIONS

16.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Vermont, 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. The affected Party shall provide prompt notice and use commercially reasonable efforts to resume performance.

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 with respect to the subject matter hereof and supersedes all prior and contemporaneous 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, provided the assignee assumes all obligations hereunder.

16.7 Severability

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction in Vermont, 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 Vermont law (21 V.S.A. § 601 et seq.)
☐ 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 Vermont Uniform Electronic Transactions Act (9 V.S.A. Ch. 20, §§ 270-296).

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.

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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: [__/__/____]

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EXHIBIT A — STATEMENT OF WORK TEMPLATE

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

1. Project Description:
[________________________________]

2. Services to Be Performed:
[________________________________]

3. Deliverables:

Deliverable	Description	Due Date	Format
[________________________________]	[________________________________]	[__/__/____]	[________________________________]
[________________________________]	[________________________________]	[__/__/____]	[________________________________]
[________________________________]	[________________________________]	[__/__/____]	[________________________________]

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

5. Environmental Marketing Claims Included:
☐ Yes (attach substantiation documentation) ☐ No

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

7. Fees:
[________________________________]

8. KPIs and Reporting:
[________________________________]

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

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EXHIBIT B — FEE SCHEDULE

Service Category	Fee Type	Rate/Amount
[________________________________]	☐ Retainer ☐ Hourly ☐ Project	$[________________________________]
[________________________________]	☐ Retainer ☐ Hourly ☐ Project	$[________________________________]
[________________________________]	☐ Retainer ☐ Hourly ☐ Project	$[________________________________]
Media Buying	☐ Commission ☐ Markup ☐ Flat Fee	[________________________________]

Payment Terms: Net [____] days
Late Payment Interest Rate: [____]% per annum (max 12% per 9 V.S.A. § 41a absent other agreement)

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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: [__/__/____]

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EXHIBIT D — DATA HANDLING ADDENDUM

1. Types of Consumer Data Collected:
☐ Names and contact information
☐ Email addresses
☐ Website browsing and cookie data
☐ Social media engagement data
☐ Purchase and transaction history
☐ Location data
☐ Demographic information
☐ Other: [________________________________]

2. Data Storage Location: [________________________________]

3. Data Retention Period: [________________________________]

4. Data Broker Registration Required: ☐ Yes (Agency registered with VT Secretary of State) ☐ No ☐ To Be Determined

5. Breach Notification Contacts:
Agency Contact: [________________________________]
Client Contact: [________________________________]
Phone: [________________________________]
Email: [________________________________]

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