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Terms & Conditions for Consulting Services

These Terms & Conditions for Consulting Services (these “Terms and Conditions”) together with any written agreement referencing these Terms and Conditions executed by Consultant and Client (as defined below) relating to the Services (as defined below) (the “Proposal”, together with the Terms, collectively, this “Contract”) apply to the sale by BREAKTHRU Brands, LLC (“Consultant”) of the Services described in this Contract to the purchasing party to whom the Proposal is addressed or who is otherwise a party to a signed agreement with Consultant for the Services (“Client”). Unless otherwise defined herein, all capitalized terms will have the meaning assigned in the Proposal.

1. Services. During the Term, Consultant will perform services for Client as provided in the Proposal, which is hereby incorporated herein by reference (the “Services”). During the Term, Client may wish to assign additional projects, products, or services to Consultant beyond the Services outlined in the Proposal (“Out-of-Scope Assignments”). Consultant agrees to accept such Out-of-Scope Assignments only upon a separate written agreement with Client regarding additional compensation to be paid to Consultant and other relevant terms and conditions. Nothing in this Contract, will be deemed to require Consultant to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to Client’s or Consultant’s interests. In addition, Client agrees to cooperate fully with Consultant and to execute and/or deliver further documents and materials and to take such other actions as may be reasonably requested by Consultant to carry out the intent and purposes of this Contract.

2. Subcontractors. Client acknowledges that Consultant may, in the rendition of the Services hereunder, engage third party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. Consultant shall supervise such services and endeavor to guard against any loss to Client as the result of the failure of Subcontractors to properly execute their commitments. If Client enters into arrangements with third party vendors, subcontractors or suppliers regarding the provision of materials or services (“Preferred Suppliers”) and requests that Consultant utilize such Preferred Suppliers in the discharge of Consultant’s obligations hereunder, Client remains solely responsible for such Preferred Suppliers.

3. Client Approval of Deliverables. Consultant shall submit to Client for its approval all elements of any materials to be produced or placed hereunder (collectively, “Deliverables”). Submission for prior approval of Deliverables will not be required to the extent that they are preliminary only. Client is solely responsible for all decisions relating to the use or implementation of the output of the Services and the Deliverables, and for determining whether the Services are appropriate for Client’s purposes.

4. Services to Client’s Designees. Should Client request Consultant to make purchases for or render any services to any parent, subsidiary, or affiliate of Client (“Client Affiliate”), Client and such Client Affiliate shall be jointly and severally liable to Consultant even though Consultant may render invoices to, or in the name of, such Client Affiliate.

5. Fees, Payments, Expenses, and Taxes. In consideration of the Services to be performed under this Contract, Client shall pay to Consultant the fees set forth in the Proposal (the “Fees”). Client shall also reimburse Consultant for all reasonable out-of-pocket travel expenses, including transportation, lodging, mileage, and meals incurred in rendering Consultant’ professional services, as well as all necessary incidental expenses (collectively, “Expenses”). All Fees and Expenses shall be paid by Client in accordance with the payment terms set forth in the Proposal or, if the Proposal does not include payment terms, within [seven (7) days of the date of Consultant’s invoice to Client]. Payments not made within such time period shall be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Consultant may suspend all services on one (1) day notice until the amounts outstanding are paid in full. Client shall pay, reimburse, and/or hold Consultant harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of the performance of the Services under this Contract, except income taxes.

6. Intellectual Property Rights.

6.1 Work Product. All Deliverables developed or prepared by Consultant or its employees or Subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product,” provided that Client has paid to Consultant all Fees, Expenses, and costs associated with creating and, where applicable, producing the Deliverables. At such time, all title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States Copyright Act.

6.2 Third Party Licenses. Notwithstanding the foregoing, it is understood that Consultant may license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor, and Client agrees that it remains bound by the terms of such licenses and that it does not obtain proprietary rights in such third party materials beyond the terms and conditions contained in the
pertinent license. Consultant will keep Client informed of any such limitations.

6.3 Consultant Materials. Notwithstanding any other provision of this Contract, Consultant shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by Consultant or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the commencement of Services for Client; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Deliverables or other deliverable, in connection with the Services (or partially in connection with the Services) (collectively, “Consultant Materials”). Subject to fulfillment of Client’s payment obligations hereunder, Consultant hereby grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to
sublicense (but only for the benefit of Client or its permitted successors or assigns), to use Consultant Materials
actually incorporated into Work Product pursuant to this Contract as necessary for or in connection with the use, management and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any Consultant Materials other than as part of such Work Product or to create derivative works of Consultant Materials.

6.4 Trademarks. Consultant may create or develop trademarks for Client, in the form of taglines,
slogans, logos, designs, or product and brand names (collectively, “Marks”). Client shall ultimately be responsible for confirming availability and registering such Marks.

6.5 Marketing. Client hereby grants Consultant the right to use the name and service marks of Client
in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Consultant and a brief scope of services provided. In addition, Client hereby grants Consultant the right to
display its logo (or other identifying information) and a hyperlink to Consultant’ website on the home page of Client’ website.

7. Term and Termination. This Contract shall commence on the date Client signs the Proposal (“Effective
Date”) and shall continue until such time as Consultant has completed the Services and delivered the Deliverables to Client (the “Term”) unless earlier terminated in accordance with the terms of this Contract. Either party may
terminate this Contract prior to the expiration of the Term by giving thirty (30) days’ prior written notice to the other party. Consultant may immediately terminate this Contract: (i) upon Client’s commission of a material breach of this Contract, or (ii) Consultant has reason to believe that Client has or may be commencing a voluntary or involuntary bankruptcy, receivership or similar proceeding. Client shall pay Consultant for all Services rendered and work performed up to the effective date of termination. Accordingly, Consultant will send to Client a final invoice for any
amounts due by Client. Client shall pay the final invoice within five (5) days of receipt and is subject to the late payment fees provided above.

8. Confidential Information.

8.1 Definition. “Confidential Information” means: (i) all non-public information, (including trade secrets, proprietary information, and information about products, business methods and business plans) relating to the business of either party (or to the business of their customers, licensors, suppliers, or other trading partners) that is either marked or otherwise identified as confidential or proprietary, or that a reasonable person would understand to be considered confidential (even if not marked or identified as confidential); (ii) intellectual property: (iii) Consultant Materials; and (iv) all information that the either party is obligated by law or contract to treat as confidential for the benefit of third parties, which may include personal, financial, or health information about
individual consumers. Confidential Information shall not include information that (x) is generally known, or readily ascertainable by proper means, by the public other than through a breach of this Contract; (y) was known by the
non-disclosing party on a non-confidential basis prior to receipt under this Contract; or (z) is rightly received by the non-disclosing party from a third party not subject to any nondisclosure obligations with respect to the Confidential Information.

8.2 Nondisclosure Obligation. Each party shall hold the other party’s Confidential Information in trust and confidence at all times and not disclose, reveal, or divulge any Confidential Information, directly or indirectly, intentionally or negligently, to any person or entity, for any purpose or reason, without the other party’s express written consent.

8.3 Use Limitation. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as specified in this Contract. Each party’s Confidential Information shall remain the sole and exclusive property of that party, except as otherwise stated herein. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Contract, the non-disclosing party may be entitled to equitable relief.

Notwithstanding termination or expiration of this Contract, Consultant and Client acknowledge and agree that their obligations of confidentiality with respect to Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.

8.4 Exceptions. If either party receives an order or other compulsory instrument issued by or under the authority of a court or governmental agency that requests any part of the Confidential Information, that party shall: (i) promptly provide the other party with written notice of the existence, terms, and circumstances surrounding the order; (ii) consult with the other party on the advisability of taking steps to resist or narrow the order; (iii) if disclosure of Confidential Information is required, furnish only the portion of the Confidential Information as the other party is advised in writing by its counsel is legally required to be disclosed; and (iv) cooperate with the other party in its efforts to obtain an order excusing disclosure of the Confidential Information, or an order or other reliable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is required to be disclosed.

9. Non-Solicitation. Client covenants and agrees that during the Term and for a period of two (2) years thereafter, regardless of the reason for termination of this Contract, Client and its affiliates and assigned personnel shall not, directly or indirectly: (i) solicit or encourage any person to leave the employment or other service of the Consultant; or (ii) hire, on behalf of the Client or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with the Consultant.

10. Relationship of the Parties.

10.1 Consultant’s Autonomy. The parties acknowledge and agree that an independent contractor relationship is formed between Client and Consultant pursuant to this Contract. Consultant and its personnel are not employees of Client or any affiliate. Consultant has the authority to control and direct the performance and the details of the Services, as governed by its own independent judgment and discretion. During the Term, and in a manner that meets the business needs of Client, Consultant shall: (i) determine when, where, and how the Services are performed; (ii) determine the hours and days in which the Services are performed; (iii) determine the location from which the Services are performed, if they can be performed off of Client’s premises; (iv) determine the order and sequence in which tasks are performed related to the Services; and (v) maintain its own work facility, provided that Client will nonetheless furnish space on its premises for Consultant to perform the Services.

10.2 No Employee Requirements. During the Term, Consultant and its personnel shall not: (i) be required to undergo Client-provided training for Client employees, except to the extent required by the Client’s safety and security policies; or (ii) represent themselves to be an employee of Client.

10.3 Exclusivity. Consultant is not exclusively engaged by Client and remains free to perform services for other persons and entities, and to make itself available to the public for such purposes

10.4 No Conflicts. Except for known conflicts that have been disclosed to Consultant (in each case Client has recused itself fully from any such conflict) Client represents and warrants to Consultant that (i) the execution, delivery, and performance of this Contract by Client do not and shall not conflict with, breach, violate, or cause a default under any contract, agreement, instrument, order, judgment, decree, or other legal obligation to which Client is a party or by which Client is bound; (ii) except for this Contract, Client is not a party to or bound by any consulting agreement, employment agreement, non-compete agreement, non solicitation agreement, or confidentiality agreement with any person that would interfere with the performance of the Services hereunder; and (iii) upon the execution of the Proposal by Client, this Contract shall be a valid and binding obligation of the parties, enforceable in accordance with its terms and conditions. Client agrees to disclose known or potential conflicts of interest to Consultant. Client represents that it has been provided with an opportunity to consult with independent legal counsel regarding its rights and promises under this Contract before execution.


12. Indemnification. Client shall fully indemnify, defend, and hold harmless Consultant, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “Consultant Indemnitee”) from and against any losses, attorneys’ fees, expenses, costs, damages, penalties, assessments, or interest assessed against or incurred by an Consultant Indemnitee (each, a “Claim”) made or brought against any Consultant Indemnitee with respect to any advertising, branding, research or other products or services which Consultant prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to Consultant including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client
or its agents to Consultant to be included in any Deliverables or media placements; (iii) the use of any materials or data provided or created by Consultant and changed by Client or its agents or used in a manner different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Deliverables or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Contract by, or any act of omission of, Client or its agents or employees relating to media commitments made by Consultant pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.


14. General Provisions.

14.1 Reformation and Severability. Whenever possible, each provision of this Contract will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Contract is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule, such invalidity, illegality, or unenforceability will not affect any other provision, but such invalid, illegal, or unenforceable provision will be reformed, construed, and enforced so as to render it valid, legal, and enforceable consistent with the intent of the parties insofar as possible and, if reformation is not possible, then severed and leaving all other language in this Contract in full force and effect.

14.2 Governing Law and Venue. All issues and questions concerning the construction, validity, enforcement, and interpretation of this Contract will be governed by, and construed in accordance with, the laws of the state of Michigan, United States, without giving effect to any choice of law or conflict of law rule or provision that would cause the application of the laws of any jurisdiction other than Michigan. If a proceeding or claim
relating or pertaining to this Contract, or any other aspect of Consultant’s engagement with Client, is initiated by any party hereto, such proceeding or claim shall and must be filed in either any state court of competent jurisdiction located in Oakland County, Michigan, or in the United States District Court for the Eastern District of Michigan.

14.3 Force Majeure. Any delay or failure of either party to perform its obligations under this Contract will be excused to the extent that the delay or failure was caused by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, acts of God, acts of a governmental entity, embargoes, explosions, riots, wars, acts of terrorism, fires, or floods, epidemics, pandemics, quarantine restrictions, or freight embargoes) (each, a “Force Majeure”). Notwithstanding anything in this Section to the contrary, (i) Client’s or its affiliate’s financial inability to perform, and (ii) Client actions or contract disputes with
its customers or vendors are not, in each case, a Force Majeure and will not, in each case, excuse performance by Client under this Contract or otherwise excuse performance by Client on theories of force majeure, commercial impracticability, or otherwise, and Client expressly assumes these risks.

14.4 Waiver. If either party or any Client Affiliate should waive any breach of any provision of this Contract, such person shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Contract. To be effective, a waiver must be in writing and signed by the party granting the waiver.

14.5 Headings. The headings of the Sections hereof are inserted for convenience only and shall not be
deemed to constitute a part hereof nor to affect the meaning thereof.

14.6 Successors and Assigns. Except as otherwise provided herein, this Contract shall bind and inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

14.7 Assignment. Client may not assign any part or all of this Contract, or subcontract or delegate any of their respective rights or obligations under this Contract, without Consultants prior written consent, provided, however, Consultant may freely assign, subcontract or delegate its respective rights or obligations under this Contract. Any attempt to assign, subcontract, or delegate in violation of this paragraph is void in each instance.

14.8 Survival. Sections of this Contract, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination or cancellation of this Contract.

14.9 Rights and Remedies Cumulative. Any enumeration of Consultant’s or its affiliates’ rights and remedies set forth in this Contract is not intended to be exhaustive. The exercise of any right or remedy under this Contract does not preclude the exercise of any other right or remedy. All rights and remedies are cumulative and are in addition to any other right or remedy set forth in this Contract, any other Contract between the parties, or which may now or subsequently exist at law or in equity, by statute or otherwise.

14.10 Third Party Beneficiaries. Nothing herein shall create or establish any third party beneficiary hereto nor confer upon any person not a party to this Contract, any rights or remedies of any nature or kind whatsoever, under or by reason of this Contract; provided, however, that the Consultant’s Affiliates and Consultant Indemnitee are deemed third party beneficiaries entitled to exercise rights hereunder and seek enforcement hereof.

14.11 Further Action. The parties shall take such further steps and execute such further documents and instruments as may be necessary or appropriate to carry this Contract into full force and effect or otherwise
effectuate the intention of the parties.

14.12 Entire Agreement. This Contract constitutes the entire agreement between Consultant and Client relating to the subject matter hereof and supersedes any prior agreement or understandings between them. Consultant reserves the right to prospectively change these Terms at any time and without notice.

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