Markett Master Services Agreement

This Master Services Agreement (the “Agreement”) is entered into by and between Markett, Inc., a Delaware C-Corporation (“Markett” or “We” or “Us” or other similar pronoun), and Client (collectively, the “Parties” or individually “Party”)) shall govern the provision of services to Client by Markett.

Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefor are set forth on the attached Statement of Services (the “SOS”) which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOS and the terms of this Agreement, the terms of the Agreement shall control.

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, Markett and Client agree as follows:

Table of Contents

  1. Definitions
  2. Term, Scope and Specifications for Services
  3. Changes in Scope
  4. Compensation and Expenses; Payment Terms
  5. Set-Off; Reservation of Account; Credit Balance
  6. Termination
  7. Representations and Warranties
  8. Indemnification
  9. Ownership and Assignment of Intellectual Property
  10. Confidentiality; Non-Disclosure; Restrictions on Use; Remedies
  11. Security of Client Confidential Information
  12. Limitation of Liability
  13. Non-Solicitation of Markett Employees
  14. Markett’s Responsibilities
  15. Client’s Responsibilities
  16. General Terms

1. Definitions

Capitalized words used, but not otherwise defined elsewhere in this Agreement or any Statement of Services, shall have the meanings set forth in this Section 1:

  1. “Account” means any right to receive payments arising under this Agreement or a Statement of Services.

  2. “Confidential Information” means any information, in any form or any medium, that is provided by a Party to the other Party, is treated as confidential by or is a trade secret of the disclosing Party, and is expressly identified, orally or visually, as “confidential”, “restricted”, or the like. However, in any event, Confidential Information shall not mean information that the receiving Party can prove (i) is in or becomes part of the public domain other than through an unauthorized or improper act or omission of the receiving Party; (ii) is or was independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; (iii) is or was lawfully received from a third party having no obligation as to its confidentiality; or (iv) consists of ideas not subject to protection as Intellectual Property under any Laws.

  3. “Intellectual Property” means any trade name, domain name, logo, trade dress, trademark, service mark, pa- tent, copyright, trade secret, right of privacy, right of publicity, or other intellectual property right.

  4. “Law” means any applicable international, foreign, or domestic law, regulation, order, or other requirement imposed or compelled by a governing or regulatory authority having legal force (whether federal, state, or local), including any treaty, statute, common law, judicial decision, rule, regulation, code, or ordinance.

  5. “Personally Identifiable Information” means any and all tangible and intangible information, in any form or medium whatsoever, that may be disclosed to or accessed by Markett in connection with or incidental to the performance of this Agreement or the Services or by any other means, and that relates to an identified or identifiable individual irrespective of whether such individual is a customer of Client, an employee of Client, or has another status, including name, postal address, e-mail address, telephone number, date of birth, social security number, driver’s license number, other government-issued identification number, financial account number, credit or debit card number, insurance ID or account number, health or medical information, credit reports, consumer reports, background checks, biometric data, digital signatures, any code or password that could be used to gain access to financial data, and any other type of information deemed “nonpublic” and protected by privacy Laws and any other applicable Law.

  6. “Services” means the services to be performed, the deliverables to be provided, and any other services to be conducted by Markett for the benefit of Client as set forth and described in this Agreement and such Statements of Services, if any, as may be issued from time to time.

  7. “Statement of Services” means a written project order, substantially in the form of Appendix 1, executed by both Client and Markett.

2. Term, Scope and Specifications for Services

  1. In consideration of the mutual covenants and conditions set forth in this Agreement and subject to Section 16(H), Client agrees to purchase Services from Markett, and Markett agrees to sell and provide Services to Client in accordance with this Agreement and any applicable Statement of Services.

  2. Before the commencement of any Services, Client and Markett shall complete and fully execute a Statement of Services, and Client shall provide Markett with an approved purchase order for the Services. For a Statement of Services to bind Client, it must be executed by a representative of Markett and the appropriate Client officer or his or her designee. Each Statement of Services shall be made a part hereof and be subject to the terms and conditions of this Agreement, as amended from time to time. No fees shall be due to Markett for any Services commenced before the Parties have completed and executed a Statement of Services.

  3. In the event any term or condition of a Statement of Services conflicts with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control, except to the extent that the applicable Statement of Services expressly and specifically states the intent to supersede this Agreement in relation to the specific term or condition. No change to a Statement of Services shall be effective unless made by written amendment signed by both Parties, as set forth in Section 3 below.

3. Changes in Scope

  1. If Client, in its sole discretion, wishes to alter, modify, expand, or change the scope of a Statement of Services (“Change”), the Parties shall comply with the procedures set forth in this Section. At any time, Client may request a Change by submitting to Markett instructions in the form of Appendix 2 (“Statement of Services Change Request”) detailing the Change and any other information necessary to implement the Change. No Change shall be considered authorized unless Client and Markett have fully executed the Statement of Services Change Request to the applicable Statement of Services, and except as expressly amended by such Statement of Services Change Request, the terms and conditions of the Statement of Services shall remain in full force and effect.

  2. Upon receipt of a Statement of Services Change Request, Markett will evaluate and notify Client as to how the Change will impact the underlying Statement of Services, including, but not limited to, any adjustments to resources, the effect on the quality of Services, or changes in the schedule for completion. Unless otherwise provided in the Statement of Services Change Request, fixed fees under the Statement of Services will not be increased as a result of a Change.

4. Compensation and Expenses; Payment Terms

  1. The compensation for Services shall be as set forth in the applicable Statement of Services. Except as otherwise set forth in the Statement of Services and subject to Client Expense Reimbursement Policy, Client shall be obligated to pay or reimburse Markett for any charge, cost, or expense incurred by Markett in performing the Services or otherwise discharging its obligations under this Agreement.

  2. Markett shall not perform any Services until the Parties execute a Statement of Services, and Client provides Markett with an approved purchase order for the Services, signed in writing. Markett shall submit timely monthly invoices that match the corresponding amounts on Client approved purchase orders to receive payment from Client. Except as otherwise set forth in the applicable Statement of Services, Client will pay any valid invoice within 30 days of receipt of such invoice, provided that Client may withhold payment of all or any portion of an invoice subject to a bona fide dispute until resolution of the dispute.

  3. Markett is an independent contractor and is responsible for all federal, state, and local income and payroll taxes attributable to compensation paid under this Agreement and any and all Statements of Services. Client will not withhold or pay on Markett’s behalf any income or payroll taxes. Client will report compensation paid to Markett under this Agreement and any and all Statements of Services on Form 1099- MISC, as required by Law. Excluding any and all federal, state, or local income taxes incurred by Markett, Client agrees to pay any and all sales, use, franchise, and excise taxes that are invoiced to Client by Markett and that may be lawfully assessed against Client in connection with the Services.

5. Set-Off; Reservation of Account; Credit Balance

  1. Markett may recoup, set off, or credit against all present and future indebtedness of Client to Markett arising from this or any other transaction with Client or any of its affiliates whether or not related hereto. If Markett determines that Client’s performance under this Agreement or a Statement of Services (“SOS”) is likely to be impaired, Markett may establish a reserve or place a hold on Client’s Account to satisfy Client’s actual or anticipated obligations to Markett arising from this Agreement or any SOS by withholding payment of invoices.

  2. Markett will pay to Client in cash any credit balance upon written request within 10 business days of notice.

6. Termination

  1. Markett may terminate this Agreement and any Statement of Services (in whole or in part) at any time for any or no reason and without penalty upon 30 days’ written notice to Service Provider, except as otherwise provided in an unexpired Statement of Services.

  2. Notwithstanding anything to the contrary in any Statement of Services, Markett may immediately terminate this Agreement and any Statement of Services (in whole or in part), at any time upon the occurrence of any of the following events: (i) Client materially breaches any of its representations, warranties, covenants or obligations set forth in this Agreement or any Statement of Services (other than payment obligations subject to a good-faith dispute), which breach is not remedied within ten (10) days after Client’s receipt of notice of such breach, provided that no such ten (10)-day cure period shall apply if the breach in question is by its nature incapable of being cured within such period or is a recurring breach of a type that has previously occurred two or more times, (ii) any violation or alleged violation of Law by Client related to this Agreement (or any Statement of Services), or which Markett determines, in its reasonable discretion, adversely impacts Markett’s interest in transacting with Client, (iii) Client becomes the subject of a voluntary bankruptcy, insolvency, reorganization, or liquidation proceeding, (iv) Client makes an assignment for the benefit of its creditors, has a receiver appointed, admits its inability to pay its material debts as they mature, or otherwise becomes insolvent, or (v) Client becomes the subject of an involuntary bankruptcy, insolvency, reorganization, or liquidation proceeding, and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding.

  3. In the event of any early termination of this Agreement or any Statement of Services by Client for any reason as provided hereunder, Client shall be obligated to pay to Service Provider only the compensation earned for Services actually performed and reimbursable expenses incurred through the effective date and time of termination, as described in the applicable Statement of Services.

  4. Any termination is without prejudice to any other remedies provided in this Agreement, any Statement of Services, or otherwise available at law or equity, including recovery of damages (except as expressly limited under this Agreement) arising out of any breach or default, and shall not otherwise affect any rights or obligations of either Party under this Agreement or any Statement of Services.

7. Representations and Warranties

As of the Effective Date and throughout the term of this Agreement and any and all Statements of Services, Markett represents and warrants that:

  1. all Services shall be performed by competent personnel with appropriate skills and experience in a professional and workmanlike manner and in accordance with this Agreement, the applicable Statement of Services, generally accepted industry and legal standards, and all Laws;

  2. in performing the Services, Markett shall use suitable supplies, materials, and equipment of good quality that comply with all generally accepted industry and legal standards and all Laws;

  3. the employment and business practices of Markett comply with all Laws, including but not limited to Laws relating to documentation requirements of employment authorization of employees and other persons per- forming the Services;

  4. the Services and any work product arising therefrom shall not infringe upon or misappropriate any Intellectual Property rights belonging to a third party;

  5. there is no impediment or restriction, legal or otherwise, that limits, prohibits, or prevents Markett from providing the Services to Client; and

  6. Markett shall not solicit business from Client employees in Client stores and shall not seek payment for Services resulting directly from such solicitation.

Nothing contained in this Agreement or any Statement of Services shall be deemed a waiver of any representations, warranties, or guarantees implied by Law.

8. Indemnification

  1. Markett shall protect, defend, hold harmless and indemnify Client, including its affiliates, officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorneys’ fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged:

    1. Misappropriation or infringement of any Intellectual Property or other right relating to the Services or this Agreement;

    2. Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or alleged to result in whole or in part from the Services or this Agreement;

    3. Violation by Markett or any of its employees, representatives, agents, contractors, or subcontractors of any Law relating to the Services or this Agreement;

    4. Act, activity, or omission of Markett or any of its employees, representatives, agents, contractors, or subcontractors including, but not limited to, activities on Client premises and the use of any vehicle, equipment, fixture, or material of Markett in connection with the Services or this Agreement;

    5. Breach of this Agreement or any Statement of Services;

    6. Data Incident, as defined in the Information Security Addendum set forth in Appendix 3;

    7. Failure by Markett or any of its employees, contractors, subcontractors, or agents to pay its employees, contractors, subcontractors or agents or provide compensation (wages, salaries, commissions, or other remuneration);

    8. Failure by Markett or any of its employees, contractors, subcontractors or agents to pay its employees, contractors, subcontractors or agents in compliance with all Laws;

    9. “Joint Employer” situation (i.e., where a claim or determination is made against Client that any employee, agent, representative, or contractor hired by Markett or its subcontractors is an employee of Client or that Client was his or her employer, including but not limited to a joint employer);

    10. Failure by Markett or any of its employees, contractors, subcontractors or agents to pay any workers compensation benefits, insurance, or other employee benefits actually or allegedly payable to persons performing Services under the Agreement;

    11. Failure by Markett to engage only employees and subcontractors who are legally authorized to work in the United States; and

    12. Discrimination, retaliation or any other employment-related tort committed by Markett or any of its employees, contractors, subcontractors or agents against persons performing Services under the Agreement.

  2. Markett shall promptly notify Client of the assertion, filing, or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity, and shall immediately take such action as may be necessary or appropriate to protect the interests of Client, its officers, directors, employees and agents. Markett shall promptly notify Client of the legal counsel Markett proposes to engage to defend the interests of Client interest in such matter. Upon Client request, Markett will promptly provide reason- able cooperation and assistance to Client with respect to any claim, lawsuit, demand, or investigation involving Client that relates to the Services or any obligations under this Agreement or any Statement of Services. Any and all counsel selected or provided by Markett to represent or defend Client or any of its officers, directors, employees or agents shall accept and acknowledge receipt of Client Indemnity Counsel Guidelines, and shall conduct such representation or defense strictly in accordance with such guidelines. If Client determines that such counsel has not done so, or appears unwilling or unable to do so, Client may replace such counsel with other counsel of Client own choosing. In such event, any and all fees and expenses of Client new counsel, together with any and all expenses or costs previously incurred by such replaced counsel or incurred on account of the change of counsel, shall be paid or reimbursed by Markett as part of its indemnity obligation hereunder. Client shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Client or any of its officers, directors, employees or agents, and Markett will not settle or resolve any portion of any such claim or lawsuit without Client prior written approval.

9. Ownership and Assignment of Intellectual Property

  1. The performance of Services by Markett shall be considered specially ordered or commissioned by Client and all work product resulting therefrom shall be works made for hire authored by Client under 17 U.S.C. § 101. All Services and work product produced or arising therefrom, including but not limited to any trade name, domain name, logo, trade dress, trademark (including any permutation or secondary mark), service mark, patent, copyright, trade secret, design, pattern, advertisement, marketing program, photograph, recording (audio or video), presentation and other right in Intellectual Property developed in the course of the performance of Services by Markett (collectively referred to in this paragraph as “Works”) shall be works made for hire. Client shall be the sole and exclusive owner of all rights of whatever nature, title, and interest in such Works, and all derivative works that may exist or be developed therefrom, in perpetuity and throughout the universe. To the extent that any Works are not works made for hire, Markett hereby assigns, conveys, and transfers to Client all of its ownership, right, title, interest, and copyright in such Works and Client shall have the irrevocable and perpetual right, throughout the universe, in any manner and in any media now known or hereafter devised to use and exploit and use the Works to such extent as Client desires without payment of additional compensation to Markett. Markett agrees to execute and deliver to Client such instruments of assignment as Client may from time to time request in order to give effect to the purposes of this paragraph.

  2. Notwithstanding the foregoing, Client shall have no rights to or interests in Markett’s Intellectual Property. “Markett’s Intellectual Property” shall consist of proprietary information of Markett including, without limitation, any materials, trademarks, methods, inventions, information, reports, practices, procedures, equipment, ideas, documentation, business plans, databases, software, or processes licensed to or developed or used by Markett for its general business and not developed specifically as part of the Services.

10. Confidentiality; Non-Disclosure; Restrictions on Use; Remedies

  1. Each Party (receiving Party) shall treat as confidential the other Party’s (disclosing Party) Confidential Information and protect it from unauthorized access, use, or disclosure. The receiving Party shall not use or copy the disclosing Party’s Confidential Information for any purpose other than in furtherance of authorized purposes under this Agreement. Further, the receiving Party shall restrict disclosure of, and access to, the disclosing Party’s Confidential Information solely to its personnel, agents, contractors, or subcontractors who need to know such Confidential Information in furtherance of the authorized purposes under this Agreement, and only after the receiving Party advises such personnel, agents, contractors, or subcontractors as to, and they have acknowledged and agreed to comply with, the restrictions as to such Confidential Information under this Agreement as they apply to the receiving Party. The restrictions on disclosure shall not apply to the extent that Confidential Information is required to be disclosed pursuant to any order or directive of a court or governmental agency of competent jurisdiction, provided that, to the extent practicable, prior notice is given to the disclosing Party so that it may, in its discretion, seek a protective order or other relief from disclosure.

  2. Without limiting any other remedies available at law or equity, a Party shall be entitled to seek injunctive relief to enjoin any threatened or continuing disclosure or unauthorized use of its Confidential Information in violation of this Agreement.

  3. Upon the disclosing Party’s written request, the receiving Party shall return all Confidential Information of the disclosing party in its possession.

  4. The confidentiality obligations hereunder shall continue for three (3) years from the expiration or termination of this Agreement; provided, however, that the receiving Party shall keep any trade secrets of the disclosing Party confidential as long as such information is deemed a trade secret by the disclosing Party.

  5. As for Client, Confidential Information shall also include (i) this Agreement, (ii) any Statement of Services, (iii) Client business plans, business processes, costs, pricing, marketing, sales, customer, and strategic information, (iv) the nature or results of any testing, inspection, or audit, (v) Personally Identifiable Information, and (vi) any other information Client designates as confidential.

11. Security of Client Confidential Information

  1. As between Client and Markett, Client is the sole owner of Client Confidential Information. Markett shall not use, copy, or disclose Client Confidential Information except to the extent needed to perform the Services or as otherwise expressly provided in this Agreement.

  2. Markett shall comply with the Information Security Addendum set forth in Appendix 3.

12. Limitation of Liability

  1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS, BUSINESS REVENUES, BUSINESS INTERRUPTION AND THE LIKE), ARISING FROM OR RELATING TO (i) THE RELATIONSHIP BETWEEN MARKETT AND CLIENT, INCLUDING ALL PRIOR DEALINGS AND AGREEMENTS, (ii) THE CONDUCT OF BUSINESS UNDER THIS AGREEMENT OR ANY STATEMENT OF SERVICES, (iii) BREACH OF THIS AGREEMENT OR ANY STATEMENT OF SERVICES, OR (iv) TERMINATION OF BUSINESS RELATIONS BETWEEN THE PARTIES, AND REGARDLESS OF WHETHER THE CLAIM UNDER WHICH SUCH DAMAGES ARE SOUGHT IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, STATUTE, REGULATION, OR ANY OTHER LEGAL THEORY OR LAW, EVEN IF CLIENT OR MARKETT HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.

  2. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 12 SHALL NOT LIMIT (i) THE SPECIFIC RIGHTS AND REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING SECTIONS 8 AND 10, OR LIABILITY FOR NEGLIGENT OR WILLFUL BREACH OF SECTION 12.

13. Non-Solicitation of Markett Employees

  1. Non-Solicitation of Markett Employees. Client understands and acknowledges that Markett has expended and continues to expend significant time and expense in recruiting and training its employees and that the loss of employees would cause significant and irreparable harm to the Markett. Client agrees and covenants not to directly or indirectly solicit, hire, or recruit, or attempt to solicit, hire, or recruit, any employee of the Markett or any employee who has been employed by Markett in the six (6) months before the last day of this Agreement (collectively, "Covered Employee"), or induce the termination of employment of any Covered Employee for a period of 12 months, beginning on the last day of this Agreement, regardless of the reason for the termination.

  2. This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, and Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement.

  3. This Section does not restrict or impede, in any way, and shall not be interpreted or understood as restricting or impeding, a Covered Employee from discussing the terms and conditions of his/her employment with co-workers or union representatives/exercising Covered Employee's rights under Section 7 of the National Labor Relations Act (NLRA)/exercising protected rights that cannot be waived by agreement.

14. Markett’s Responsibilities

  1. Markett’s Employees. Markett is solely responsible for determining: (i) how many employees are needed to fulfill Markett’s obligations under this Agreement or a Scope of Work; (ii) the job duties and qualifications of each employee; (iii) the hiring process, including any drug or other testing, interviews, and final approvals; (iv) the training, reviews, and evaluations of employees; (v) employee work schedules, including start and finish times, overtime, and meal/break times; (vi) employee compensation, bonuses, and paycheck details; and (vii) all employee-related records and documents, which Markett shall exclusively control.

  2. Employee Practices and Policies. Markett shall not rely upon or utilize Client’s employee practices or policies related to any of its SOS obligations; Markett shall independently use its own employee handbooks, practices, and/or policies. In addition, Markett shall not consult with, seek guidance or approval from, or provide any updates on any labor relations or employment issue to any Client associate, supervisor, or manager at any Client facility where Markett’s employees provide Services. Likewise, Client personnel shall not: (i) have any involvement or participation in Markett’s labor relations or employment decisions; or (ii) supervise Markett’s employees, including making assignment, scheduling, or disciplinary decisions. Markett shall not invite Client personnel to attend any meetings with Markett’s managers, supervisors, or employees regarding any aspect of labor relations and personnel management, nor shall Markett provide Client person- nel any reports, memos, or other descriptions of such meetings.

  3. Electronic Equipment. Markett shall acquire, maintain, and utilize its own electronic equipment, including computers, cell phones, iPads, and the like, to provide Services under this Agreement. Client personnel shall not have access to any such Markett equipment for any reason. Markett shall not use any Client electronic equipment or other equipment such as, without limitation, balers, compactors, MC40’s, TC70’s, portable printers, registers and SMART terminals in the performance of the Services to be provided pursuant to a Scope of Work.

  4. Supervisory Personnel. For each Scope of Service, Markett shall designate one or more of its employees as the supervisor/manager of Markett’s employees for all matters under the SOS for the duration of the SOS.

15. Client’s Responsibilities

  1. Time is of the essence in this Agreement; Client shall respond and provide feedback to communications from Markett in a timely fashion.

  2. Payment and Costs. Pursuant to the MSA, Client is paying Markett certain amounts for carrying out assignments (i.e., fees for services rendered) set forth in this Scope of Services within the time frame agreed upon by the Parties. The amounts are not subject to renegotiation, adjustment, or amendment due to any change in the costs of labor/employment occasioned during the Term of this Agreement. Markett shall bear any in- crease in such costs beyond what Markett initially anticipates, except for adjustments agreed to by the Parties based on changes in scope or portfolio.

  3. Client shall cooperate with Markett in its performance of the Services and provide access to Client’s creative, marketing, and social media resources as required to enable Markett to provide the Services.

  4. Client to provide Markett access to Key Performance Indicators in a timely fashion.

  5. Client shall designate one of its employees [or agents] to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the "Contract Manager"), with such designation to remain in force unless and until a successor Contract Manager is appointed.

  6. Client shall require that the Contract Manager respond promptly to any reasonable requests from Markett for instructions, information, marketing materials, or approvals required by Markett to provide the Services.

  7. Client shall take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Markett's provision of the Services.

  8. Expenses. Only out-of-pocket expenses approved in writing by Client prior to being incurred shall be eligible for reimbursement by Client. All expenses shall be calculated net of any discounts, rebates, or credits and shall be eligible for reimbursement only at Markett’s net out-of-pocket cost. In all cases, Markett shall use good faith efforts to minimize reimbursable expenses and perform the Services in an efficient and cost-effective manner. Expenses paid to affiliates of Markett, family members of affiliates of Markett, or other related parties, are not reimbursable except as expressly approved by Client in writing.

  9. Reimbursable Expenses. Markett will submit to Client invoices for reimbursable expenses on a monthly basis not later than ten days after the end of each month. Client will pay all proper invoices within 30 days of receipt of invoice, provided that Client may withhold payment of any portion of an invoice subject to a bona fide dispute until resolution of the dispute. No invoices may be submitted by Markett for reimbursable expenses more than 60 days after the date the expense was incurred unless such late submission is expressly approved by Client in writing.

  10. CLIENT WILL ONLY REIMBURSE MARKETT FOR EXPENSES INCURRED, DOCUMENTED AND SUBMITTED IN ACCORDANCE WITH CLIENT EXPENSE REIMBURSEMENT POLICY.

16. General Terms

  1. Independent Contractor. Markett is an independent contractor in performing/providing the contracted Services. Neither this Agreement nor any Statement of Services shall be construed to create any association, partnership, joint venture, employment or agency relationship between Client and Markett for any purpose. Markett’s employees and agents are not and shall not be considered Client employees under any circumstance; as such, they shall have no authority to bind Client or act on Client’s behalf.

  2. Publicity; Use and Protection of Intellectual Property. Markett may use Client’s name, logo, trademarks, service marks, marketing materials or content, copyrights, and trade dress in connection with the Services.

  3. Assignment and Rights of Enforcement. Markett shall not assign, delegate, or otherwise transfer any rights or obligations under this Agreement or any Statement of Services (including any rights to any vendor number assigned to Markett by Client) without Client prior written consent. Any purported assignment in violation of this provision will be void.

  4. Notices. All notices or other communications required or permitted under this Agreement or any Statement of Services shall be made in writing and shall be deemed duly given either (i) upon transmittal of an e-mail to the contact person for the recipient Party at the email address designated in the recipient Party’s contact information in this Agreement, with reasonable evidence of successful transmission, or (ii) on the third business day after mailing by either registered or certified U.S. mail, return receipt requested, postage prepaid, to the contact person for the recipient Party at the mailing address designated for the recipient Party in the recipient Party’s contact information in this Agreement.

  5. Severability; Waiver. No finding that a part of this Agreement or any Statement of Services is invalid or unenforceable shall affect the validity of any other part hereof or thereof. A Party’s failure to enforce at any time any provision of this Agreement or any Statement of Services will not be construed as a waiver of such provision or of any rights thereafter to enforce such provision. Any waiver of any of the terms and conditions of this Agreement or any Statement of Services must be in writing and signed by authorized representatives of Markett and Client.

  6. Survival of Provisions. The provisions of this Agreement that, by their nature, extend beyond the termination of this Agreement, including, but not limited to, Sections 7, 8, 9, 10, 11 and 12 will survive and remain in effect until all obligations are satisfied.

  7. Choice of Law; Forum Selection; Statute of Limitations. This Agreement, any and all Statements of Services, and any and all disputes arising hereunder or relating hereto, whether in contract or tort or otherwise, shall be governed by, enforced, and construed in accordance with the laws of the State of California. The federal and/or state courts of Los Angeles County, California shall have the exclusive venue and jurisdiction over any actions or suits relating thereto. The Parties shall not raise and hereby waive any defenses based upon venue, inconvenience of forum, or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. Any legal action brought by Client against Markett must be filed within two (2) years after the date payment on the applicable Statement of Services was due, or it shall be deemed forever waived. The Parties acknowledge that they have read and understand this clause and agree willingly to its terms.

  8. No Business Expectation; Competitive Services. Except as otherwise provided in a fully-executed Statement of Services, Client has no obligation and makes no promises to purchase any minimum amount of Services from Markett. No person has authority on Client’s behalf to make any representations or promises to Markett of any expected or possible level of business with Markett or about Client intentions or expectations regarding any present or future business with Markett. Any expenditures, investments, or commitments made by Markett in reliance on future business from Client pursuant to this Agreement or otherwise are done at Markett’s own risk and without any obligation whatsoever on the part of Client. Markett shall perform the Services for Client on a non-exclusive basis, and nothing in this Agreement will limit Client right to contract with other providers, or develop or acquire materials or programs that are similar to or competitive with the Services.

  9. Force Majeure. If any place of business or other premises of Client or Markett shall be affected by lockouts, strikes, riots, war, acts of terrorism, fire, civil insurrection, flood, earthquake, acts of God, or any other events beyond that Party's control (but not including market fluctuations other than those caused by reason of the foregoing), which might reasonably tend to impede or delay the Services covered by this Agreement, the Party so impacted may, at its option, cancel all or any part of the applicable Statement of Services by giving prompt written notice to the other Party.

  10. No Third-Party Beneficiaries. Except as expressly provided in this Agreement, Client and Markett intend the terms and provisions of this Agreement and each Statement of Services hereunder to benefit solely Client and Markett. Client and Markett do not intend to, and do not, confer third-party beneficiary rights on any other person or entity.

  11. No Contracting Authority. Neither Client nor Markett shall have the right to draft, propose, or sign contracts that bind the other Party.

  12. Entire Agreement. This Agreement, the Statement of Ethics, and any Statement of Services shall constitute the full understanding of the Parties, a complete allocation of risks between them, and a complete and exclusive statement of the terms and conditions of their agreement. All prior agreements, negotiations, dealings and understandings, whether written (including electronic record) or oral, regarding the subject matter hereof, are superseded by this Agreement. Any changes in this Agreement shall be in writing and executed by the Parties after the Effective Date hereof.

  13. Counterparts. This Agreement may be executed in counterparts. Each counterpart shall be deemed an original, and all counterparts taken together shall constitute one and the same agreement, which shall be binding and effective as to all Parties. In addition, signatures delivered via electronic mail or facsimile transmission shall have the same force, validity, and effect as the originals thereof.