TERMS AND CONDITIONS

I. Term

The Agreement will begin on the effective date specified in the SOW and will operate according to the terms in the SOW. Either party may change or terminate the Agreement in accordance with the notice provisions outlined in these Terms and Conditions.

II. Services

The Service Provider will provide the Client with the digital marketing services as described in one or more SOWs. Each SOW will specify the scope of the services, any deliverables or milestones, and the fees for the services. The specific details of the services to be provided by the Service Provider will be set forth in the SOW. The Service Provider will perform the services in a professional and workmanlike manner, in accordance with the standards and practices generally accepted in the digital marketing industry.

III. Scheduling and Collaboration

The Client must schedule the services with the Service Provider, providing specific details and requirements for the services. All services involve a collaborative process where the Service Provider and the Client work together to design services that are most useful for the Client. Specific campaigns require 48 hours advance notice during standard business hours to the Service Provider for events such as sales, specials, etc. Any additional services not outlined in the SOW will require a separate agreement.

IV. Fees and Payment

The Client will pay the Service Provider the fees set forth in each SOW for the services provided. All fees are due and payable upon receipt of the date of the invoice. Unpaid balances will accrue interest at a rate of $25.00 per day for payments that are 14 days past due. The Client is responsible for all taxes, duties, or other governmental charges imposed on the Client or the Service Provider arising out of the Agreement, except for taxes based on the Service Provider's net income.

V. Confidentiality

The Client and the Service Provider agree to maintain the confidentiality of all Confidential Information shared between them during the course of the Agreement. 'Confidential Information' refers to any information or materials disclosed by either party to the other party, either directly or indirectly, in writing. The receiving party must keep the disclosing party's Confidential Information confidential and must not disclose or use the Confidential Information for any purpose other than the performance of the Agreement. The receiving party may only disclose the Confidential Information to its employees or contractors who need to know the Confidential Information for the performance of the Agreement and who are bound by confidentiality obligations at least as protective as those set forth in these Terms and Conditions. The provisions of this section do not apply to any information that:

• (a) becomes publicly known through no fault of the receiving party;
• (b) was rightfully in the receiving party's possession before disclosure by the disclosing party;
• (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligations;
• or (d) is independently developed by the receiving party without use of the disclosing party's Confidential Information.

VI. Indemnification

The Client will indemnify, defend, and hold the Service Provider and its affiliates, directors, officers, employees, agents, and representatives harmless from and any and all claims, damages, losses, liabilities, and expenses, including reasonable attorneys' fees and costs, arising out of or in connection with:

• any breach by the Client of these Terms and Conditions;
• any actual or alleged violation of any laws, rules, or regulations by the Client;
• any content or materials provided by the Client to the Service Provider; and
• any unauthorized use of the Services by the Client.

VII. Use of Work Product

Triarc will be allowed to use their work product for their own purposes as long as sensitive or confidential data will not be disclosed in the process. Such use is primarily for training and marketing purposes.

VIII. Warranty and Liability

The Service Provider represents and warrants that it has the necessary skills, experience, and resources to perform the Services in a professional and workmanlike manner. The Service Provider's liability for any breach of the above warranty is limited to the re-performance of the non-conforming Services. The Service Provider will not be liable for any indirect, incidental, consequential, or special damages arising out of or in connection with these Terms and Conditions or the provision of the Services, including but not limited to lost profits, lost business, or lost data, even if the Service Provider has been advised of the possibility of such damages. The Client acknowledges that the Service Provider has set its fees and entered into these Terms and Conditions in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The Client agrees that the limitations and exclusions of liability and disclaimers specified in these Terms and Conditions will survive and apply even if found to have failed of their essential purpose.

IX. Termination

These Terms and Conditions may be terminated by either party, according to the Term in the SOW. Upon termination of these Terms and Conditions, the Client will pay the Service Provider for all services performed and expenses incurred prior to the effective date of termination. The provisions of Sections VI (Confidentiality), VII (Indemnification), VIII (Warranty and Liability), IX (Termination), and X (Miscellaneous) will survive the termination of these Terms and Conditions.

X. Dispute Resolution

If there is any dispute over this Agreement, the parties agree to resolve their dispute through mediation/binding arbitration via a mediator/arbitrator selected by Triarc with input from the client, who will first attempt to mediate the dispute and then arbitrate if necessary. The mediator/arbitrator can use the same session to do both mediation and arbitration if one party requests it. Cost of mediation/arbitration will be evenly divided by the parties unless the mediator/arbitrator finds bad faith or failure to cooperate. If a party refuses to cooperate with the mediator/arbitrator then the mediator/arbitrator can find against them.If any terms in this Agreement are found to be void, the other terms will constitute the agreement and remain valid

XI. Governing Law and Jurisdiction

These terms and conditions and any disputes arising under or in connection with these terms and conditions will be governed by and construed in accordance with the laws of the state of Colorado, without giving effect to any principles of conflicts of law. The parties agree to submit to the exclusive jurisdiction of the courts located within the state of Colorado for the resolution of any disputes arising under or in connection with these terms and conditions.

XII. Miscellaneous

These terms and conditions constitute the entire agreement between the parties and supersede all prior and contemporaneous understandings or agreements, whether written or oral. These terms and conditions may not be amended or modified except in writing signed by both parties. If any provision of these terms and conditions is found to be invalid or unenforceable, that provision will be enforced to the maximum extent possible and the remaining provisions will remain in full force and effect. This agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any services set forth in any SOW or agreement between the parties for services shall be governed by the terms hereof.
Version: 2022