TERMS AND CONDITIONS

Campaign Services.
1. Client engages Digital Sucker Punch, and Digital Sucker Punch accepts such engagement, to perform the services and functions set forth in the “Your Investment” section above (“Campaign Services”) in one or more Advertising Campaigns.
2. Digital Sucker Punch provides Campaign Services during one-month periods (each one-month period an “Advertising Campaign”). Upon the end of an Advertising Campaign, another Advertising Campaign will automatically initiate until Client provides Digital Sucker Punch at least thirty-days’ notice that Client will not initiate the next Advertising Campaign in writing. Client acknowledges that Digital Sucker Punch does not perform Campaign Services for any incomplete portion of an Advertising Campaign or for any period of time shorter than a complete Advertising Campaign, and that Digital Sucker Punch’s engagement and management of Campaign Services requires Digital Sucker Punch to engage and contract for the performance of services and use of technology on a per-campaign basis, and Digital Sucker Punch’s costs associated with these obligations are not immediately terminable or avoidable by Digital Sucker Punch without appropriate notice, and that the written notice period for any termination or non-renewal of future Advertising Campaigns is a material requirement for Digital Sucker Punch.
Client Cooperation.
1. Client will assign an employee of Client to facilitate Digital Sucker Punch’s performance of the Campaign Services and serve as Digital Sucker Punch’s primary contact person for all interactions with Client. Unless otherwise agreed, Digital Sucker Punch will have no obligation to interact with any third party in the performance of Campaign Services for Client.
2. Client will provide a current and final version of the Client’s branding style guide for the use in the creation of the Client’s advertising media. (If the client does not have a brand guide, the client’s guidance is required to ensure brand continuity).
3. The Client agrees to moderate comments on their Facebook ads. Digital Sucker Punch shall provide the Client with a list of active ads from which the Client can manage engagements.
4. The Client also agrees to ensure all customer data provided to Digital Sucker Punch for the purposes of targeting is compliant with data protection policies applicable to the Client.
Fees and Expenses.
1. In exchange for the performance of Campaign Services, Client will pay Digital Sucker Punch a monthly fee (a “Campaign Fee”) as defined in the “Your Investment” portion of the Digital Sucker Punch Marketing Proposal in advance of the Campaign Services.
  
  “Total Advertising Spend” means the total and aggregate of all Client’s advertising
  purchases within all marketing channels managed by Digital Sucker Punch, regardless of whether Digital Sucker Punch, Client or a third party manages such advertising purchases as determined on a monthly basis. Digital Sucker Punch will determine the Total Advertising Spend and calculate the Campaign Fee based upon Digital Sucker Punch’s access to the Client’s marketing channel advertising Accounts.
2. All Campaign Fees are due from the Effective Date and on a monthly recurring basis in which Digital Sucker Punch will perform the Services. All payments for Campaign Fees are set up and processed by recurring credit card payment. Invoices for the adjustments for the prior months after the final calculation of the Total Advertising Spend of the preceding months is determined by Digital Sucker Punch and are invoiced separately.
3. In the event Client’s account with Digital Sucker Punch becomes past due, all amounts due and unpaid will accrue interest at the interest rate of one and one-half percent, per month, of the total unpaid amounts due and owing, compounded monthly. Client’s unpaid balance will be determined by taking the beginning balance of Client’s account for each month, adding any new charges, and subtracting any payments and credits made to Client’s account. Digital Sucker Punch will then multiply this amount by the applicable monthly periodic rate of one and one-half percent to complete the late charge for the Client’s account that month.
4. If it becomes necessary for Digital Sucker Punch to institute litigation or arbitration to collect sums owed by Client, the Client will be responsible for all attorneys’ fees and collection costs incurred by Digital Sucker Punch in connection with such litigation or arbitration should a judgment or award be entered in Digital Sucker Punch’s favor.
Contract Term.
1. This Agreement shall commence on the Effective Date and shall expire the day after the end of the last Advertising Campaign in which Campaign Services were provided. Either party will have the right to immediately terminate this Agreement for cause by giving written notice to the other party in the event that such party: (i) files a petition in bankruptcy, is adjudicated bankrupt or insolvent, makes an assignment for the benefit of creditors oran arrangement pursuant to any bankruptcy law, discontinues its business or a receiver is appointed and such receiver is not discharged within thirty days; and (ii) after having received a notice of breach hereof, fails to cure such breach and provide the other party notice of such cure within thirty days from the date of the other party’s written notice.
2. In the event Client terminates access to Client’s marketing channel advertising account, Client agrees that Digital Sucker Punch may utilize the highest Total Advertising Spend previously incurred by Client in any prior month for purposes of calculating Client’s Total Advertising Spend in the current month.
Warranties
Digital Sucker Punch’s performance hereunder will conform with industry standards. With exception of the foregoing, Digital Sucker Punch hereby disclaims and excludes all warranties, representations and guarantees, express and implied. No third party is intended to be nor be deemed a third party beneficiary hereto, and Client will indemnify, defend and hold Digital Sucker Punch harmless from any and all third party beneficiary claims arising hereunder.
Platform Responsibility.
1. Client is solely responsible for the operation, function, up-time connectivity, accessibility, use and security of Client’s websites, content management systems, blogs, web and mobile applications, and all other digital and online assets and tools utilised by Client, and all data and content therein (collectively, the “Client Platform”). Digital Sucker Punch shall have no liability for any loss or damage: (i) to the Client Platform; (ii) arising from or relating to Digital Sucker Punch’s access or use of the Client Platform; and/or (iii) arising from or relating to the damage, malfunction or loss of use of the Client Platform.
2. Unless otherwise provided, Client is solely responsible for the deployment and implementation of technologies and tools within the Client Platform, including, without limitation, the deployment of pixel trackers.
3. Digital Sucker Punch shall have no liability or responsibility for any delay, lost opportunity, lost profits, or loss of any investments arising from or relating to Client’s failure to make any adjustments, modifications, or improvements to the Client Platform as reasonably requested by Digital Sucker Punch or as required for Digital Sucker Punch’s performance hereunder.
4. Client assumes the sole responsibility, and Digital Sucker Punch shall have no liability for Client’s compliance with all policies, rules and regulations of the applicable social media platforms for which Digital Sucker Punch will perform Campaign Services. Client will provide Digital Sucker Punch any and all notices from the social media platforms applicable to all content posted by Digital Sucker Punch. Any action by a social media platform caused by Client’s action or inaction resulting from any suspension or termination of advertising through such social media platform, including, without limitation, all actions and inactions prior to the Effective Date hereof shall not suspend or otherwise relieve Client of its obligations hereunder.
5. Digital Sucker Punch shall take all necessary measures to notify customers of any Facebook Ad Account payment issues which cause the delivery of Ad Campaigns to cease, as soon as Digital Sucker Punch is aware of the issue.
Confidentiality.
The parties will maintain the confidentiality of and not disclose this Agreement, any term and condition hereof or any information exchanged between the parties, directly or indirectly, whether in tangible or intangible form, including, without limitation, all designs, drawings, processes, metrics, analyses, costs and expenses, and any other information marked as “Confidential” or “Proprietary” or under the circumstances of disclosure should reasonably be considered as confidential or proprietary. A party will have no obligation of confidentiality or non-disclosure for any information that (i) the party lawfully knew prior to the time of receipt from the other party as shown by the party’s contemporaneously-created written records without breach of any obligation of confidentiality or nondisclosure; (ii) is generally known or available to the public through no act or failure to act by the party in breach of any obligation of confidentiality or nondisclosure; (iii) was furnished to third parties by the other party without restriction on disclosure; or (iv) was furnished to the party by a third party as a matter of right, without restriction on disclosure and not in violation of any contractual, legal or fiduciary obligation of such third party. The obligations as set forth in this Paragraph shall survive the termination or expiration hereof for a maximum period of three years from the effective date of termination or expiration hereof.
Force Majeure.
Neither party will be liable for any failure or delay in its performance hereof to the extent such failure or delay is due to an act of God, act of civil or military authority, fire, epidemic, pandemic, flood, earthquake, riot, war, sabotage, labor dispute or other causes beyond the reasonable control of such party.
Acknowledgements.
1. Client acknowledges that any modifications or adjustments to Client’s advertising programs without the input or recommendation of Digital Sucker Punch may result in the loss of performance in the marketing channel.
2. Client understands and agrees that there are many factors involved in achieving success in digital marketing, many of which are outside the reasonable control of Digital Sucker Punch. By signing this Agreement, the Client is aware of, acknowledges and accepts the risks associated with marketing and advertising purchases, and the potential for a loss of the investment. Digital Sucker Punch believes that the expectations and projections provided to Client are reasonable, and Digital Sucker Punch does not provide any assurance that such expectations and projects will prove correct, nor does Digital Sucker Punch guarantee any results or outcome arising from or relating to the Campaign Services.
3. Client acknowledges and understands that it can take up to 48 hours to action requests that are placed on the Digital Sucker Punch team that are requested without prior planning, preparation and adequate lead time.
Limitation of Liability.
Except for Client’s breach of Paragraph 13, neither party will be liable to the other party or to any third party for any statutory, consequential, exemplary, incidental, punitive or specific damages (including damages for the loss of business, loss of personal profits, business interruption, loss of data, or any other pecuniary loss) arising from or in connection with the performance hereunder or breach hereof, regardless of the form of action, whether in contract or in tort, and even if such party has been advised of the possibility of such damages. Subject to the limitations of this Paragraph, the total and aggregate liability of Digital Sucker Punch arising hereunder shall be limited to the total amount of fees paid to Digital Sucker Punch. This Paragraph shall survive the termination or expiration hereof.
Dispute Resolution.
The parties agree to resolve any and all claims and controversies arising hereunder, and the interpretations hereof, in good faith within sixty days of a party’s notice to the other party of such claims or controversies. If the parties fail to resolve any claims or controversies arising hereunder within sixty days of such notice, the parties will resolve such claims and controversies through binding arbitration under the Commercial Arbitration Rules of a Mediation Service at a location in Brisbane, Australia chosen by the arbitrator(s). The arbitrator(s) will make a determination as to the prevailing party in any and all claims and controversies submitted to arbitration hereunder and award the prevailing party, in addition to any other remedies provided hereunder, an award of its costs and expenses, including, without limitation, the prevailing party’s attorneys’ fees. A party may enter a judgment upon the award rendered by the arbitrator(s) in the state and federal courts located in or nearest to Brisbane, Australia and the parties waive any objection to venue in such courts. The arbitrator(s) will be empowered to award damages in accordance with the limitations of liability set forth in Paragraph 10. A party may enter a judgment upon the award rendered by the arbitrator(s) in any competent jurisdiction having personal jurisdiction over the other party as appropriate.
No Solicitation of Employees.
During the term hereof, and for a period of twenty-four months following the effective date of termination, neither party will engage, solicit, offer or otherwise approach, directly or indirectly, any current or former employee or contractor of the other party having engaged in any performance hereunder for the purpose of any employment or other engagement of such employee or contractor by the party. This Paragraph shall survive the termination or expiration hereof.
Ownership.
1. Client will retain ownership to all domain names, trademarks, service marks, trade dress and branding elements of the Client (collectively “Client IP”). All assets, including images, videos and creative content created by Digital Sucker Punch will be exclusively owned by Digital Sucker Punch with exception to any Client IP included therein (“Digital Sucker Punch IP”). Client conveys to Digital Sucker Punch a license to create, deploy, and utilise the Client IP in Digital Sucker Punch’s performance of Campaign Services hereunder. During each Advertising Campaign in which Campaign Fees are paid, Digital Sucker Punch conveys a license to Client IP to host, broadcast and derive an economic benefit from the Digital Sucker Punch IP, thereafter, Client will have no right to utilize any Digital Sucker Punch IP without the written consent of Digital Sucker Punch. This Paragraph shall survive the termination or expiration hereof.
General Provisions
This Agreement: (i) does not create any agency, partnership or joint venture between the parties, and except as provided herein, neither party shall have the right, power or authority to bind or create any obligation on behalf of the other party; (ii) embodies the entire understanding between the parties and excludes all other prior and contemporaneous agreements between the parties with respect to the subject matter hereof, and any additions or modifications hereto must be in writing and signed by both parties; (iii) is not assignable or delegable, in whole or in part, without the written consent of the parties, and any attempted assignment or delegation is void, provided, however, either party may assign this agreement to a third party that purchases all or substantially all of the assets of the party; (iv) shall inure to the benefit of and shall be binding upon the parties, their successors, and permitted assigns; (v) and the current or future enforcement of any term or provision hereof cannot be waived by any delay or omission in the exercising of any right, power or remedy pursuant to a breach or default, except in writing; (vi) may be signed in counterparts; (vii) shall be construed according to the laws of the state of California, without giving effect to its conflict of laws provisions; (viii) shall be construed as severable in the event any provision is determined unlawful or unenforceable , and the remaining provisions hereof will remain to in full force and effect and will be construed so as to give the fullest effect to the intent of the parties expressed herein; and (ix) is signed by a duly authorized representative to sign on behalf of and bind each party hereto. This Paragraph shall survive the termination or expiration hereof.

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