Marketing & Advertising Services Agreement (Wisconsin)

MARKETING & ADVERTISING SERVICES AGREEMENT

(Wisconsin Jurisdiction)

WISCONSIN LEGAL NOTES:

• Interest Rate: Wisconsin's legal rate of interest is 5% per annum (Wis. Stat. § 138.04), among the lowest in the nation.
• Non-Compete: Wisconsin enforces restrictive covenants under Wis. Stat. § 103.465 only if "reasonably necessary for the protection of the employer or principal." Wisconsin courts historically do NOT blue-pencil; an overbroad covenant may be entirely voided. See Star Direct, Inc. v. Dal Pra, 2009 WI 76, for limited divisibility.
• DATCP Enforcement: The Wisconsin Department of Agriculture, Trade and Consumer Protection enforces Wis. Stat. § 100.18.

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 Wisconsin 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: Wisconsin Deceptive Trade Practices Act (Wis. Stat. § 100.18); Wisconsin Uniform Trade Secrets Act (Wis. Stat. § 134.90); Wisconsin Consumer Act (Wis. Stat. Chs. 421-427); 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.

"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 Wis. Stat. § 134.98(1)(b): an individual's last name and first name or first initial 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 Wis. Stat. § 134.90(1)(c): 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 with this Agreement 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 Wisconsin 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 Wis. Stat. § 100.18 prohibitions on fraudulent representations;
(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 required.

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 qualifying as works made for hire, Service Provider irrevocably assigns all rights to Client upon full payment.

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 to use Client Materials for the Services 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. Service Provider shall not use any individual's name, likeness, or identity in Campaign materials without written consent. Wisconsin recognizes a common-law right of privacy/publicity. Service Provider shall obtain releases and maintain records.

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 raised within [____] days.

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

5.5 Late Payments. Overdue amounts accrue interest at [____]% per annum, not to exceed 5% per annum, the legal rate under Wis. Stat. § 138.04. This is one of the lowest statutory rates in the United States. Parties may agree to higher rates up to a maximum of 12% for loans or forbearances under Wis. Stat. § 138.05, subject to certain exceptions and licensing requirements under Wis. Stat. § 138.09.

5.6 Taxes. Fees exclude taxes. Client pays applicable sales and use taxes (Wisconsin state rate: 5%, Wis. Stat. § 77.52; county tax of 0.5% may apply). Advertising services are generally not subject to sales tax in Wisconsin unless involving tangible property.

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. Client responsible for factual claims.

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; (b) authority to execute; (c) binding obligation; (d) no violation.

8.2 Service Provider Warranties.
(a) Professional performance;
(b) Deliverables conform to Acceptance Criteria;
(c) no infringement;
(d) necessary licenses obtained;
(e) compliance with Wis. Stat. § 100.18 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) Wisconsin Deceptive Trade Practices Act (Wis. Stat. § 100.18), which prohibits any "assertion, representation or statement of fact which is untrue, deceptive or misleading" made for the purpose of inducing a person to enter into a contract or acquire merchandise;
(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 Wis. Stat. § 100.18 Specific Requirements. Service Provider shall not:
(a) make untrue, deceptive, or misleading representations in advertisements, announcements, statements, or publications;
(b) misrepresent the nature of the business by using words like "manufacturer," "factory," or "wholesaler" improperly;
(c) misrepresent pricing as a manufacturer's or wholesaler's price;
(d) use the name of a community to create a false impression of business location;
(e) make any representation that is misleading in light of all circumstances.

9.4 DATCP Enforcement. The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) enforces Wis. Stat. § 100.18. Violations may result in injunctive relief, civil forfeitures, and private causes of action for pecuniary loss. Service Provider acknowledges this regulatory framework.

9.5 Endorsements and Influencer Marketing. Service Provider shall:
(a) ensure FTC Endorsement Guide compliance;
(b) require clear disclosure of material connections;
(c) obtain written agreements with influencers;
(d) verify honest endorsements.

9.6 Email Marketing (CAN-SPAM). Compliance required:
(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 and FCC rules;
(b) FTC Telemarketing Sales Rule;
(c) Wisconsin Telemarketing Registration (Wis. Stat. § 100.52), including registration with DATCP;
(d) Wisconsin No-Call list and national registry;
(e) calling-hour restrictions and required disclosures.

9.8 Native Advertising. Clearly labeled as advertising.

10. DATA PROTECTION AND PRIVACY

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

10.2 Wisconsin Data Breach Notification (Wis. Stat. § 134.98). Service Provider shall:
(a) notify affected individuals within a reasonable time, not to exceed forty-five (45) days after determining unauthorized acquisition of Personal Information has occurred;
(b) if breach affects more than 1,000 individuals, notify consumer reporting agencies;
(c) maintain breach response records.

10.3 Data Security. Commercially reasonable administrative, technical, and physical safeguards.

10.4 Marketing Data. Service Provider shall:
(a) comply with applicable data laws;
(b) maintain suppression lists;
(c) not sell or transfer consumer data without consent;
(d) honor opt-out requests.

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. "Confidential Information" means 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) protect with 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 Wis. Stat. § 134.90. Other obligations: [____] years.

11.5 Equitable Relief. Injunctive relief available without proving actual damages or posting bond per Wisconsin 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 WISCONSIN NOTICE: Wisconsin Stat. § 103.465 governs restrictive covenants. A covenant not to compete is lawful and enforceable ONLY if the restrictions are "reasonably necessary for the protection of the employer or principal." Wisconsin courts have historically declined to blue-pencil overbroad restrictive covenants, meaning an unreasonable provision may void the entire covenant. The limited divisibility doctrine from Star Direct, Inc. v. Dal Pra, 2009 WI 76, permits enforcement of separate, independent provisions even if another is unenforceable, but only if the provisions are truly divisible.

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 do not violate this provision.

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

12.3 Non-Compete. [SELECT ONE]

☐ Non-Compete Included: During the Term and for [____] months thereafter, Service Provider shall not provide substantially similar services to direct competitors of Client in [________________________________].

DRAFTING CAUTION: Under Wis. Stat. § 103.465, this provision must be carefully drafted as "reasonably necessary" to protect Client's legitimate interests. If any restriction is deemed unreasonable, a Wisconsin court may void the entire non-compete rather than reform it. Each restriction (time, geography, scope) should be drafted as a separate, independent, and divisible covenant. Consult Wisconsin counsel.

☐ Non-Compete Not Included.

12.4 Separate and Divisible Covenants. Each restrictive covenant in this Section 12 is intended to be a separate, independent, and divisible covenant. If any covenant is found unenforceable, the remaining covenants shall survive if they can be independently read and enforced.

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 Wis. Stat. § 100.18;
(d) negligence or willful misconduct;
(e) mishandling of 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 Wisconsin Pecuniary Loss. Note: Under Wis. Stat. § 100.18(11)(b)(2), a person suffering pecuniary loss due to a DTPA violation may recover twice the amount of pecuniary loss plus reasonable attorneys' fees and costs. This statutory remedy may not be limited by contract.

15. INDEPENDENT CONTRACTOR STATUS

15.1 Relationship. Service Provider is an independent contractor.

15.2 No Authority. Cannot bind Client.

15.3 Wisconsin Classification. Wisconsin uses a multi-factor test for independent contractor status. Under Wis. Stat. § 102.07 (workers' compensation) and Wis. Stat. § 108.02 (unemployment), factors include: control over work; operating under a separate business name; maintaining a separate business; holding a FEIN; operating under specific contracts; and not receiving employee-type benefits. Service Provider represents compliance.

15.4 Tax Obligations. Service Provider responsible for all taxes. Client issues Form 1099-NEC.

15.5 No Benefits. No employee benefits from Client.

15.6 Workers' Compensation. Service Provider maintains coverage per Wis. Stat. § 102.28.

16. DISPUTE RESOLUTION

16.1 Governing Law. Laws of the State of Wisconsin, 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, Wisconsin, and the United States District Court for the [Eastern/Western] District of Wisconsin.

16.4 Arbitration. [SELECT ONE]

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

☐ Arbitration Not Elected.

16.5 Jury Trial Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES JURY TRIAL. Wisconsin courts generally enforce jury waivers in commercial contracts.

16.6 Injunctive Relief. Either Party may seek injunctive relief to protect IP, Confidential Information, or Trade Secrets.

16.7 Prevailing Party Fees. Prevailing Party recovers reasonable attorneys' fees and costs.

16.8 Statute of Limitations. Written contract: six (6) years (Wis. Stat. § 893.43).

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 Wisconsin Uniform Electronic Transactions Act (Wis. Stat. Ch. 137) and federal ESIGN Act.

17.8 Insurance. Service Provider maintains:
(a) CGL: $[________________________________] per occurrence;
(b) E&O: $[________________________________];
(c) Cyber: $[________________________________];
(d) Workers' Compensation per Wisconsin 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 UCC Filings. Wisconsin UCC filings are made through the Department of Financial Institutions (DFI). If any portion of the Deliverables or Services involves goods subject to the UCC, filing with the DFI may be required.

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 Wisconsin attorney. Wisconsin's strict approach to non-compete enforcement (no blue pencil) and low 5% interest rate are critical considerations.