Terms and Conditions

Please read these Terms and Conditions (“Terms”) carefully before proceeding. XAQ10 LLC d/b/a Yerbalist (“XAQ10,” “Yerbalist,” “we,” “our,” or “us”) provides services solely pursuant to these Terms and any applicable attachments, statements of work, or order forms. By clicking “I have read and agree to the Terms and Conditions,” signing an Order Form, or submitting payment, you (“Client,” “you,” or “your”) agree to be bound by these Terms.

If you do not agree, do not use Yerbalist’s services.

1. Engagement and Services

1.1 Description of Services

Yerbalist provides marketing, creative, and digital advertising services (“Services”), including but not limited to: management of advertising campaigns on Meta (Facebook, Instagram), Google, and other platforms; creative development (video, static, and copywriting); campaign optimization, performance reporting, and analytics; and related marketing strategy and consulting.

The specific Services, fees, and deliverables for each Client engagement are described on the Client’s Statement of Work or landing page (“SOW”), which incorporates these Terms by reference.

1.2 Independent Contractor

Yerbalist performs Services as an independent contractor. Nothing herein creates an employment, partnership, or joint venture relationship.

2. Term, Renewal, and Termination

2.1 Term and Renewal

Each engagement shall have an initial term as stated in the applicable signed SOW or order form (the “Initial Term”). The “Term” means the full period during which Services are provided, including the Initial Term and any renewal period.

Upon expiration of the Initial Term, Services automatically renew on a month-to-month basis unless either Party gives at least thirty (30) days’ written notice of termination, unless otherwise stated in the applicable SOW. Termination is effective at the end of the applicable thirty (30)-day notice period, and Client remains responsible for all fees, Ad Spend, reimbursable costs, and other amounts incurred or payable through the effective date of termination.

2.2 Early Termination and Liquidated Damages

Client acknowledges that pricing for the Initial Term reflects discounted rates, upfront work, creative production, operational planning, and allocation of Yerbalist’s resources. If Client terminates during the Initial Term for any reason other than Yerbalist’s uncured material breach, Client remains liable for all fees due for the remainder of the Initial Term as liquidated damages, and not as a penalty. This represents a reasonable estimate of Yerbalist’s damages due to early termination.

Liquidated damages under this Section apply only during the Initial Term stated in the applicable SOW. Following expiration of the Initial Term, no liquidated damages apply to termination on the notice period set forth in Section 2.1.

2.3 Suspension and Termination by Yerbalist

Yerbalist may suspend Services immediately if Client fails to make any payment when due.

Yerbalist may terminate Services upon written notice if: (1) Client fails to pay any undisputed amount within ten (10) days after notice; (2) Client requests or engages in advertising or conduct that violates law, regulation, or platform policy; or (3) Client otherwise materially breaches these Terms.

2.4 Acceleration and Suspension

If Client fails to make any payment when due, Yerbalist may immediately suspend all Services until payment is received. If such failure continues for more than ten (10) days after notice, Yerbalist may, during the Initial Term only, declare all remaining fees for the balance of the Initial Term immediately due and payable.

Following expiration of the Initial Term, Client’s financial obligation upon termination is limited to fees, Ad Spend, reimbursable costs, and other amounts accrued, incurred, or payable through the effective date of termination, including any required thirty (30)-day notice period under Section 2.1.

2.5 Effect of Termination

Upon termination, all accrued obligations, including unpaid fees, become immediately due. Any provisions that by their nature should survive termination shall survive, including Sections 5 through 15 and Sections 16 through 19.

3. Fees and Payment

3.1 Fees

All fees are set forth in the Client’s SOW or landing page. Unless otherwise stated, fees are billed monthly in advance. Ad Spend is billed separately and prepaid in full before campaign launch.

3.2 Payment Authorization and Method

Client authorizes Yerbalist to automatically charge its designated credit or debit card, ACH, or other authorized payment method for all recurring monthly fees, setup fees, and Ad Spend. Client must maintain a valid payment method on file at all times.

3.3 Late Fees

Amounts not paid when due accrue interest at 1.5% per month (or the maximum rate permitted by law), compounded monthly, until paid in full. Suspension of Services for nonpayment does not waive Client’s payment obligations.

3.4 Taxes

All fees are exclusive of applicable taxes. Client is responsible for all sales, use, or similar taxes other than Yerbalist’s income taxes.

3.5 Attorney’s Fees and Collection Costs

In any dispute arising from these Terms, including the collection of unpaid amounts, the prevailing party is entitled to recover reasonable attorneys’ fees and costs in addition to any other relief.

4. Client Responsibilities

Client must: (1) provide Yerbalist with complete and accurate information, access credentials, and brand assets (including Meta Business Manager, Google Ads, website backend, and analytics accounts); (2) approve creative deliverables or provide revisions within five (5) business days; (3) ensure all Client content complies with applicable laws, advertising regulations, and platform policies; and (4) refrain from requesting or directing Yerbalist to perform unlawful or deceptive marketing.

Yerbalist is not liable for any delays, errors, or underperformance caused by incomplete Client information, delayed approvals, or noncompliance.

5. Client Attestation and Representations

5.1 Ownership and Rights to Materials

The Client represents and attests that any materials, assets, data, creative content, imagery, likenesses, trademarks, product information, copy, or other submissions provided to Yerbalist, whether uploaded directly, delivered through shared drives, emailed, or transmitted by any other method, are owned by the Client or lawfully licensed for the Client’s intended use.

The Client further attests that all necessary rights, releases, permissions, and consents have been obtained prior to providing such materials to Yerbalist, including but not limited to:

• Image releases and model permissions
• Employee, contractor, or third-party likeness rights
• Vendor permissions and authorizations
• Music licenses and sound recording rights
• Copyright clearances and trademark permissions
• Rights related to intellectual property or data accuracy
• Product claims, testimonials, and endorsements
• Any other legal clearances required for lawful use

5.2 Reliance on Client Materials

The Client acknowledges that Yerbalist will rely on the accuracy, legality, and appropriateness of all materials and approvals provided by the Client. Yerbalist is not responsible for conducting independent legal review, copyright searches, or verification of Client-provided materials unless expressly agreed to in writing as a separate service.

5.3 No Liability for Client-Provided or Client-Approved Materials

Yerbalist is not responsible or liable for any errors, delays, disputes, legal claims, or damages arising from Client-provided or Client-approved assets. This includes, without limitation, issues related to:

• Copyright, trademark, or patent infringement
• Likeness rights, privacy rights, or publicity rights
• Employee or contractor disputes
• Misrepresentation, defamation, or false advertising
• Product compliance, safety claims, or regulatory violations
• Inaccuracies in data, statistics, or claims submitted by the Client
• Violations of platform policies (Meta, Google, etc.) stemming from Client materials
• Third-party vendor or supplier disputes

5.4 Broad Creative Authorization and Maintenance of Materials

By providing, uploading, or transmitting any materials through any medium described in these Terms, the Client expressly authorizes Yerbalist to utilize such materials in marketing campaigns in any manner Yerbalist deems creatively appropriate to achieve the engagement’s objectives. The Client bears the sole and ongoing responsibility for ensuring that all provided materials are current, accurate, and in full compliance with all applicable laws, industry regulations, and platform policies. Yerbalist shall have no liability for the use of outdated, non-compliant, or inaccurate materials provided by the Client.

5.5 Talent and Likeness Releases

Where final creative deliverables include third-party talent, models, or likenesses sourced or arranged by Yerbalist, Yerbalist shall use commercially reasonable efforts to obtain and provide Client with copies of applicable releases. Such releases shall cover Client’s license to the final deliverables only, shall not extend to Raw Footage or Yerbalist’s underlying production assets, and shall not expire upon termination of the engagement.

6. Approval Process and Deemed Approval

6.1 Explicit Approval

Client may provide approval of deliverables, creative assets, campaign materials, or other work product explicitly in writing via email, project management platform, or other documented communication.

Single Revision Round: Unless otherwise specified in an SOW, Client is entitled to one (1) single round of revisions per deliverable.

Timeframe: All revision requests must be submitted within five (5) business days of delivery.

Actionable Feedback Requirement: To be valid, a revision request must contain Written, Clear, and Actionable Feedback.

6.2 Definition of Actionable Feedback

For the purposes of these Terms, “Actionable Feedback” is defined as specific, objective instructions that identify exactly what element needs modification and the desired outcome.

Non-Actionable Feedback: Vague, subjective, or aesthetic critiques that lack specific direction — such as “make it pop,” “I don’t like the vibe,” “make it more modern,” or “do something different” — do not constitute Actionable Feedback.

Effect of Vague Feedback: If the Client provides non-actionable feedback, Yerbalist may, at its discretion, pause work until clear instructions are received or proceed based on its professional judgment. Any additional rounds of revisions necessitated by a failure to provide clear feedback originally will be subject to additional fees.

6.3 Deemed Approval Through Non-Response

Materials sent by Yerbalist to Client for review are considered approved if the Client does not provide feedback or request changes within five (5) business days of delivery. Time is of the essence. Client’s failure to respond within this timeframe constitutes implicit approval and authorization to proceed.

6.4 Automatic Approval of Uploaded Materials

Any assets, files, imagery, videos, copy, or other materials uploaded or shared by the Client in the designated shared drive, project management system, or emailed to Yerbalist are considered automatically approved for use. By uploading or emailing such materials, the Client confirms that:

• They hold all necessary rights and permissions to such materials
• The materials comply with all applicable laws and platform policies
• They authorize Yerbalist to use them for work performed under this Agreement

6.5 Revisions After Approval

Once materials are approved (explicitly or implicitly), any subsequent revision requests may be subject to additional fees and timeline adjustments at Yerbalist’s discretion.

7. Acceptance of Deliverables

All deliverables shall be deemed accepted five (5) business days after delivery unless Client provides written notice of nonconformance describing specific issues. If notice is timely provided, Yerbalist will make one (1) round of revisions to bring deliverables into conformance. Subsequent requests may incur additional fees.

8. Performance and Disclaimers

Yerbalist shall perform Services using commercially reasonable efforts consistent with industry standards. Because advertising outcomes depend on multiple external factors, Yerbalist makes no warranty or guarantee of specific results, leads, conversions, or revenues. All Services are provided “as is,” without warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, or noninfringement.

9. Intellectual Property

9.1 Ownership

Except as expressly provided in this Section 9, Yerbalist retains ownership of all creative work, advertising materials, templates, methods, systems, processes, tools, production assets, advertising infrastructure, performance data, optimization frameworks, account structures, and other intellectual property created, used, developed, or supplied by Yerbalist in connection with the Services.

Subject to Client’s full and timely payment of all applicable fees, Yerbalist grants Client the licenses to final creative deliverables expressly described in this Section 9. No ownership rights are transferred to Client unless expressly stated in a separate written agreement signed by both Parties.

9.2 Raw Footage Ownership

Yerbalist retains sole and exclusive ownership of all raw, unedited video footage, audio recordings, and photography captured or recorded by Yerbalist or its subcontractors (“Raw Footage”). Client acknowledges that delivery of final deliverables does not grant Client any rights, title, or interest in the Raw Footage.

9.3 Ownership of Edits and Derived Works

All edited videos, graphics, advertisements, copy, creative assets, and other final creative deliverables produced by Yerbalist (“Edits”) are and shall remain the intellectual property of Yerbalist, except for Client’s pre-existing trademarks, logos, brand assets, product information, and other Client-owned materials incorporated therein.

During the Term of the engagement, and subject to Client’s full and timely payment of all amounts due, Yerbalist grants Client a limited, revocable, non-exclusive, non-transferable license to use, display, reproduce, and distribute the Edits solely in connection with Client’s marketing and advertising activities.

9.3.1

Upon Client’s completion of the full Initial Term stated in the applicable SOW and payment in full of all invoices, fees, Ad Spend, reimbursable costs, and other amounts due for that Initial Term, Client shall receive a perpetual, non-exclusive, non-transferable license to use the final Edits produced for Client during that Initial Term.

Client shall not receive a perpetual license to any Edits if Client terminates Services before completion of the Initial Term, fails to pay all amounts due for the Initial Term, or is terminated by Yerbalist for nonpayment, breach, unlawful conduct, or violation of law, regulation, or platform policy.

For the avoidance of doubt, the perpetual license described in this Section 9.3.1 does not transfer ownership of the Edits to Client and does not extend to Raw Footage, Yerbalist Advertising Infrastructure, production files, project files, source files, working files, templates, tools, methods, account structures, optimization frameworks, data models, proprietary processes, or other underlying Yerbalist materials.

For Edits produced after the Initial Term during any renewal period, Client shall receive a perpetual, non-exclusive, non-transferable license to such Edits upon payment in full of all invoices, fees, Ad Spend, reimbursable costs, and other amounts due for the period in which such Edits were produced, unless otherwise stated in the applicable SOW.

9.4 Post-Termination Usage and Buy-out Fees

Upon termination of Services, Client’s license to use the Edits shall immediately cease with respect to any Edits for which Client has not earned a perpetual license under Section 9.3.1.

Client may continue to use Edits after termination only to the extent that Client has earned a perpetual license under Section 9.3.1 or the Parties execute a separate written buy-out or extended license agreement.

Any continued use of Edits after termination without an earned perpetual license or separate written agreement is strictly prohibited. Yerbalist may condition any buy-out, ownership transfer, or extended licensing rights on Client’s payment of a negotiated buy-out fee and full payment of all outstanding amounts owed to Yerbalist.

9.5 Advertising Infrastructure

“Yerbalist Advertising Infrastructure” means Business Managers, ad accounts (including backup ad accounts), platform profiles, campaign and account structures, access methods, and operational or backup infrastructure created, provisioned, funded, maintained, or supplied by Yerbalist in connection with Services, whether dedicated to a single Client or shared across multiple clients. Yerbalist Advertising Infrastructure is and shall remain Yerbalist’s sole property. Nothing in these Terms requires Yerbalist to transfer, return, or surrender Yerbalist Advertising Infrastructure to Client upon termination or otherwise, unless the parties execute a separate written agreement providing for such transfer, subject to additional fees.

10. Confidentiality

Each Party agrees to maintain the confidentiality of the other’s proprietary or sensitive information for two (2) years after termination. Confidential Information does not include information that is public, independently developed, or required to be disclosed by law.

11. Compliance and Legal Responsibility

Client is solely responsible for ensuring that its advertising, products, and materials comply with: all applicable federal, state, and local laws and regulations; and advertising platform policies (e.g., Meta, Google). Yerbalist reserves the right to reject or suspend any content that it reasonably believes may violate law or policy.

12. Indemnification

12.1 Client Indemnification of Yerbalist

Client agrees to indemnify, defend, and hold harmless Yerbalist and its employees, contractors, officers, directors, affiliates, and representatives (collectively, “Yerbalist Parties”) from and against any and all third-party claims, disputes, demands, liabilities, damages, losses, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and court costs) arising from or relating to:

• Client-provided materials, assets, or content, including but not limited to claims of copyright infringement, trademark infringement, violation of publicity or privacy rights, defamation, misrepresentation, or data inaccuracies
• Client’s approvals, omissions, or failure to respond, whether explicit or implicit, including deemed approvals under Section 6
• Client’s failure to obtain proper permissions, releases, or licenses for materials provided to Yerbalist
• Client’s breach of these Terms, including representations and warranties made herein
• Violations of law or third-party rights stemming from Client’s products, services, business practices, or instructions to Yerbalist
• Employee or contractor disputes related to likeness rights, compensation claims, or unauthorized use of personal information provided by Client
• Product compliance issues, including false advertising, unfair trade practices, or regulatory violations related to Client’s products or claims
• Any consequences or losses resulting from Client’s failure to provide timely feedback, accurate information, or legally compliant assets

12.2 Indemnification Procedures

Yerbalist will provide Client with prompt written notice of any claim subject to indemnification. Client shall have the right to control the defense and settlement of such claim, provided that Client may not settle any claim in a manner that admits liability on behalf of Yerbalist or imposes obligations on Yerbalist without Yerbalist’s prior written consent. Yerbalist reserves the right to participate in the defense at its own expense.

13. Limitation of Liability

13.1 Cap on Liability

To the fullest extent permitted by law, Yerbalist’s total liability shall not exceed the total amount of fees paid by Client in the preceding one (1) month, and Yerbalist shall not be liable for indirect, incidental, consequential, special, exemplary, or punitive damages, including lost profits or business interruption.

Notwithstanding the foregoing, where an SOW expressly provides for a liability cap based on the Initial Term, that SOW’s cap shall control. The limitations in this Section 13.1 shall not apply to liability arising from a party’s willful misconduct or fraud.

13.2 Exclusions from Liability

Without limiting the generality of Section 13.1, Yerbalist shall have no liability whatsoever for:

• Errors, delays, or legal claims arising from Client-provided or Client-approved materials
• Copyright, trademark, or intellectual property disputes stemming from Client assets
• Platform policy violations caused by Client content or instructions
• Damages resulting from Client’s failure to respond, provide accurate information, or obtain necessary permissions
• Third-party claims related to employee likeness, vendor disputes, or data inaccuracies in Client-provided materials
• Any claims that would be subject to Client’s indemnification obligations under Section 12

13.3 Essential Purpose

The Parties acknowledge that the limitations of liability set forth in this Section 13 are fundamental elements of the basis of the bargain between the Parties and reflect an informed, voluntary allocation of risk. These limitations shall apply even if any limited remedy fails of its essential purpose.

14. Governing Law, Forum, and Arbitration

14.1 Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflict of law principles. Subject to the arbitration provisions below, the Parties consent to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona, and waive any objection to venue or forum non conveniens.

14.2 Arbitration

Any dispute, controversy, or claim arising out of or relating to this Agreement, including its breach, termination, or validity, shall be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect. The arbitration shall be conducted before a single arbitrator experienced in commercial contract disputes. The seat of arbitration shall be Phoenix, Arizona, and the language shall be English. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Either Party may pursue actions in small claims court or to collect undisputed amounts due, which are expressly exempt from arbitration.

15. Force Majeure

Neither Party shall be liable for delays or failures to perform due to causes beyond reasonable control, including acts of God, government action, war, labor disputes, or system outages.

16. Entire Agreement and Amendments

These Terms, together with any applicable SOW or payment authorization form, constitute the entire agreement between Yerbalist and Client, superseding all prior understandings. Yerbalist may update these Terms from time to time. Updated versions will be posted on Yerbalist’s website and apply prospectively to ongoing Services. Continued use after posting constitutes acceptance of the revised Terms.

17. Severability and Waiver

If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. The failure of either Party to enforce any right or provision shall not constitute a waiver of such right or provision.

18. Assignment

Client may not assign or transfer these Terms or any rights hereunder without Yerbalist’s prior written consent. Yerbalist may assign these Terms to any affiliate or successor in connection with a merger, acquisition, or sale of assets.

19. Notices

All notices must be in writing and delivered by email or certified mail to the addresses listed on the Client’s SOW or Yerbalist’s contact page. Notices are deemed received upon delivery confirmation.

20. Acceptance

By selecting “I Agree,” submitting payment, or continuing to use Yerbalist’s Services, Client acknowledges that it has read, understood, and accepts these Terms, including the liquidated damages, acceleration, arbitration, attorney’s fees, client attestation, deemed approval, indemnification, and limitation of liability provisions.