MARKETING CAMPAIGN MASTERS SERVICE AGREEMENT

98STRONG.COM

Master Services Agreement

1. Campus Seeding & Content Programs — The Services

1.1 Services: 98Strong, Inc. (“98Strong”) shall provide services to OLIPOP PBC (“Company”) as specifically set out in one or more statements of work issued by 98Strong and accepted by Company (each a “SOW”). Each campaign described in a SOW is a “Program.” Depending on the applicable SOW, services may include campus product seeding, social content, product and retailer-launch support, Student Athlete recruitment and management, contracting and payments, product fulfillment, email/SMS acquisition support, and reporting (the “Services”). Only the services and quantities specified in the applicable SOW are included. In the event of any inconsistency between a SOW and this Agreement, the terms of this Agreement shall control; provided, in the event the SOW specifically indicates it is overruling this Agreement (“Modified Terms”), the Modified Terms shall only apply with respect to that particular SOW.

1.2: Substitute of Student Athletes/Force Majeure: The Parties acknowledge and agree that due to unforeseen circumstances or reasons beyond 98Strong’s reasonable control (“Force Majeure Event”), certain Student Athletes (as later defined) may not be able to perform services relating to the Program. In the event thereof, Company agrees that 98Strong can contract with another Student Athlete boasting similar demographics (i.e. school, sport, number of Instagram followers) (“Substitute Student Athletes”); provided, any and all Substitute Student Athlete shall be selected pursuant to 98Strong and Company sole discretion. 98Strong will provide written notice (email sufficient) to the Company promptly of such change. In the event of any delay of the performance of services relating to the Program resulting from a Force Majeure Event, 98Strong shall provide Company written notice thereof (email sufficient), and Company acknowledges that: (i) such delay shall not be considered a default or material breach of the terms contained in this Agreement, and (ii) 98Strong’s performance of services under any applicable SOW shall be suspended for the duration of the Force Majeure Event; provided, if such Force Majeure Event lasts for a period of more than ninety (90) consecutive days, either Party shall have the right to terminate this Agreement upon written notice (email sufficient) provided to the other Party. For the purpose of this Agreement, “Student Athletes” refers to those student athletes provided by 98Strong for the purpose of performing services relating to and/or in furtherance of the Program.

2. Payment & Payment Liability:

2.1 Invoicing and Payment Schedule. Company shall pay the total fee stated in the applicable SOW in equal monthly installments over the campaign term stated in that SOW. Monthly invoice and installment due dates will follow the payment schedule stated in the SOW or a billing schedule agreed by both parties in writing. 

The monthly installments will total the fee specified in the SOW, with any rounding adjustment applied to the final installment. Company acknowledges that timely payment of each scheduled installment supports Student Athlete compensation and administration of the Program.

2.2 Payment Liability.
Company is solely liable for all payments due under each SOW, regardless of whether it has received reimbursement from any third party. Company shall also reimburse 98Strong for all reasonable costs of collection, including attorneys’ fees, court costs, and collection agency fees.

3. Student Athlete Engagement, Product Fulfillment & Content Rights:

3.1 Student Athlete Contract: 98Strong shall ensure all Student Athletes sign individual contracts with 98Strong for the agreed Program deliverables, participation period and compensation (“Student Athlete Contracts”). 98Strong shall obtain the content rights necessary to provide the license described in Section 3.3. Failure of a Student Athlete to sign shall not be deemed a default or material breach by 98Strong; in that event, 98Strong may select a Substitute Student Athlete in accordance with Section 1.2.  

3.2 Product Supply, Scheduled Fulfillment & Reimbursement

98Strong shall manage fulfillment and shipment of product to the contracted Student Athletes on a set cadence agreed with Company. Company will supply 98Strong with codes for website ordering. Shipments support: (i) Content Production - product used to create content under the approved creative brief; and (ii) Product Seeding & Distribution - product for approved campus sampling and peer-to-peer distribution under the applicable SOW. 98Strong shall not be responsible for delays caused by Company’s failure to provide product or required fulfillment information by the agreed handoff dates.

Company represents and warrants that Company’s Products and other information, instructions (including Requested Revisions), and materials it provides to 98Strong and its Student Athletes under this Agreement (“Company Materials”): (a) are and will be in compliance with all applicable laws, and (b) do not violate the rights of any third parties, and 98Strong and its Student Athletes use of such in performance of its Services as contemplated hereunder do not and will not violate applicable laws or third party rights.

3.3 License: Subject to the terms of this Agreement and applicable SOW, including full payment under the applicable SOW, 98Strong grants the Company a worldwide, royalty-free, non-exclusive license in perpetuity from the date of delivery of the applicable content to publicly display, distribute, sublicense, and use in whole or in part the social media posts created by the Student Athletes for the Program under the applicable SOW. Company may not modify or create derivative works of social media posts created under this Agreement except by written consent of, and subject to any additional terms and conditions imposed by, 98Strong for any such modification and use thereof. Except for the license explicitly provided above and any other rights granted in the applicable SOW, as between the Parties, all other rights to the Services and intellectual property rights therein, including rights to any work products created, developed, discovered, conceived, provided, or introduced by the Student Athletes, remain solely with 98Strong.

3.4 Company acknowledges that 98Strong may use the content and/or social media posts created by Student Athletes under this Agreement in promotional campaigns by 98Strong and state that the Company has partnered with 98Strong for the Program.

3.5 The Parties may, upon mutual agreement, issue a press release upon execution of this Agreement and/or issue other public marketing and communications materials during the Term detailing the business arrangement hereunder.

3.6 98Strong will be responsible for Student Athlete’s compliance with regulatory requirements related to endorsements and testimonials, including without limitation any obligations of the individual social media platforms.  98Strong will establish policies that require Student Athlete to meet such requirements, including without limitation a disclosure policy that is consistent with FTC Guidelines and applicable law.  Upon request, 98Strong will provide Company with copies of such policies and 98Strong’s management, education, and enforcement of such policies.

4. Miscellaneous Provisions.

4.1 Disclosures and Legal Compliance.  98Strong will be responsible for Student Athlete’s compliance with regulatory requirements related to endorsements and testimonials, including without limitation any obligations of the individual social media platforms.  98Strong will establish policies that require Student Athlete to meet such requirements, including without limitation a disclosure policy that is consistent with FTC Guidelines and applicable law.  Upon request, 98Strong will provide Company with copies of such policies and 98Strong’s management, education, and enforcement of such policies.

4.2 Independent Contractor. Company acknowledges that 98Strong’s relationship with the Company is that of an independent contractor, and nothing contained in this Agreement shall be construed as establishing an employer/employee relationship between 98Strong and/or the Student Athlete and the Company. 

4.3 Force Majeure. 98Strong shall not be responsible for any claims or damages resulting from any delays in performance or for non-performance due to a Force Majeure Event, including but not limited to changes in applicable NIL laws or policies and/or changes in compliance at the Student Athlete’s school.

4.4 Limitation of Liability; Indemnification. Except in the event of gross negligence or intentional misconduct by a Party or for a Party’s indemnification obligations herein, such Party will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to this Agreement or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether such Party has been advised of the possibility of any such damage. Except in the event of gross negligence or intentional misconduct, or for a Party’s indemnification obligations herein, in no other events will the Party’s liability exceed the total costs paid or Payable by Company for the services giving rise to the claim or cause of action. 

Company hereby agrees to indemnify, defend, and hold harmless 98Strong, and 98Strong’s employees, agents, representatives, principals, contractors, and affiliates, from and against any and all third-party claims, actions, liabilities, damages, out of pocket costs and expenses (including, without limitation, reasonably incurred attorney’s fees and costs) (each, a “Claim”), to the extent such Claim(s) arise out of or relates to: (i) negligence or willful misconduct by Company; (ii) any breach or alleged breach of Company’s representations, warranties, duties, obligations, or covenants contained within this Agreement or a SOW; (iii) any alleged or actual unauthorized use, misappropriation, or direct or indirect infringement of any third party’s patent, copyright, trademark, trade secret, privacy, or other proprietary right relating to materials provided by Company to 98Strong and/or Student Athletes; and (iv) Company Materials. The provisions of this Article shall survive termination or expiration of the Agreement. 

4.5 Assignment. Neither Party may assign any of its rights under this Agreement or delegate any performance under this Agreement, except with the prior written consent of the other Party. Any purported assignment of rights or delegation of performance in violation of this section is void.

4.6 Amendments. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties.

4.7 Governing Law. The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, not including its conflicts of law provisions.

4.8 Attorneys’ Fees. In the event of any legal action or proceeding involving the Parties to enforce any provision of this Agreement, to enforce any remedy available upon default under this Agreement, or seeking a declaration of the rights of either Party under this Agreement, the prevailing Party shall be entitled to recover from the other such attorneys’ fees and costs as may be reasonably incurred, including the costs of reasonable investigation, preparation and professional or expert consultation incurred by reason of such litigation.

4.9 Disputes. Any dispute arising from this Agreement shall be resolved through final and binding arbitration under the Commercial Rules of Arbitration of the American Arbitration Association before a single arbitrator in Mercer County, New Jersey. Judgment upon any award may be entered in any court of competent jurisdiction. The decision of the arbitrator shall be binding and conclusive upon the Parties.

4.10 Entire Agreement. This Agreement contains the entire understanding between the Parties and supersedes and cancels all prior agreements of the Parties, whether oral or written, with respect to such subject matter.

4.11 Notices. Any notice or other communication given or made to a Party under this Agreement shall be by email to the notice address designated by that Party in the applicable SOW or otherwise provided in writing.

4.12 Waiver. No Party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.

4.13 Termination. In addition to the termination rights otherwise set forth in this Agreement, either Party may terminate this Agreement or a specific SOW to this MSA immediately in the event of the other Party’s failure to comply with any term, duties, or obligations required under this Agreement (a “breach”), which breach remains uncured for a period of thirty (30) days after notice of such breach is delivered by the non-breaching Party setting forth in specific detail the facts and circumstances related to such breach. Company acknowledges in the event this Agreement or a specific SOW is terminated as a result of Company’s breach under this Section 4.13, 98Strong shall remain entitled to full payment of the total costs set forth in the applicable SOW(s). 

4.14  Miscellaneous. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction or interpretation of any provision of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together, shall constitute one and the same document. Each Party acknowledges they have participated in the drafting and negotiation of this Agreement and have been afforded the opportunity to have legal counsel review this Agreement. As a result, there shall be no presumption against either Party on the ground that such Party was solely responsible for preparing this Agreement.

98 Strong Inc. 

99 Snowden Lane

Princeton, NJ 08540

Email: web@98Strong.com