MARKETING CAMPAIGN MASTERS SERVICE AGREEMENT
98STRONG.COM
Master Services Agreement
Version Date: January 2024
1. Product Seeding – The Services
1.1 Services: 98Strong shall provide product seeding services (the “Services”) as set out more specifically in one or more statements of work to be issued by 98Strong and accepted by the Company (each a “SOW”). 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 may not be able to participate in the product seeding campaign. 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 Athletes shall be selected pursuant to 98Strong’s sole discretion. 98Strong will provide written notice (email sufficient) to the Company promptly of such change. In the event of any delay in the performance of services relating to the product seeding campaign 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.
2. Payment & Payment Liability
2.1 Invoicing and Payment Schedule. In exchange for 98Strong’s performance of services, the Company agrees to pay 98Strong the amount outlined in the applicable Statement of Work (SOW).
2.2 Payment Terms. Unless otherwise stated in the applicable SOW, Company shall remit payment no later than thirty (30) days from the date of executed agreement.
2.3 Late Payments. Subject to applicable law, overdue amounts will incur a non-negotiable late fee of 3%, applied immediately after the due date. An additional 3% late fee will be added every thirty (30) days thereafter, calculated on the total outstanding balance including previously accrued late fees. If this fee exceeds any legally permitted amount, it will be automatically reduced to the maximum allowable amount under applicable law.
If Company fails to pay any undisputed amount within thirty (30) days after receiving written notice of non-payment, 98Strong may, in addition to any other available remedies: (1) suspend performance under any active SOW; (2) reject or cancel any pending SOW; and/or (3) terminate any active SOW. 98Strong will have no liability to Company for any such suspension, cancellation, or termination resulting from late or unpaid amounts.
2.4 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
3.1 Student Athlete Coordination: Once Student Athletes have been approved by the Company for the applicable product seeding campaign, 98Strong will ensure each Student Athlete receives product and follows the fulfillment plan. The failure of any Student Athlete to participate shall not be deemed a default or material breach by 98Strong, and 98Strong shall have the right to select a Substitute Student Athlete in accordance with Section 1.2.
3.2 Product Fulfillment and Reimbursement: The Company agrees to either: (i) support 98Strong in shipping the Product(s) (as defined in the applicable SOW) directly to the Student Athletes, or (ii) provide the Student Athletes with an agreed-upon credit to order or purchase the Product(s).
If the Student Athlete(s) purchase the Product(s) directly, the Company will reimburse 98Strong for all such purchases. All costs must be pre-approved by the Company, and 98Strong will submit invoices for reimbursement, which will be due upon receipt.
Company represents and warrants that Company’s Products and other information, instructions, 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.
3.3 Publicity Rights (If Applicable): Should Student Athletes voluntarily post about the product, and if such posts are shared with the Company, 98Strong will work with the Company to obtain written consent for reuse. Unless otherwise specified in the applicable SOW, no rights to content are automatically granted.
3.4 Promotional Use by 98Strong: Company acknowledges that 98Strong may use the names of Student Athletes and Company, in connection with non-confidential campaign recaps and internal promotional materials, unless otherwise agreed in writing.
3.5 Press or Public Communications: The Parties may, upon mutual agreement, issue a press release and/or marketing materials during the Term describing the product seeding relationship.
4. Miscellaneous Provisions
4.1 Code of Conduct by Student Athletes: All Student Athletes shall act in accordance with 98Strong’s Code of Conduct and relevant guidelines. 98Strong shall act in compliance with all applicable law, including FTC regulations. 98Strong warrants that each Student Athlete has agreed to: (a) comply with all applicable laws, (b) not infringe on third-party rights, and (c) not knowingly disparage the Company or its Products.
4.2 Independent Contractor. Company acknowledges that 98Strong’s relationship with the Company is that of an independent contractor.
4.3 Force Majeure. 98Strong shall not be responsible for delays or non-performance due to a Force Majeure Event, including changes in NIL law or school policy.
4.4 Limitation of Liability; Indemnification. Except for gross negligence, intentional misconduct, or indemnification obligations, no Party shall be liable for indirect or consequential damages. 98Strong’s liability shall not exceed total payments made for the applicable SOW.
Company agrees to indemnify and hold harmless 98Strong from third-party claims arising from: (i) Company’s negligence, (ii) breach of this Agreement, (iii) infringement based on Company-provided materials, and (iv) Company Materials.
4.5 Assignment. No rights or obligations may be assigned without written consent.
4.6 Amendments. No changes are binding unless in writing and signed by both Parties.
4.7 Governing Law. This Agreement is governed by the laws of the State of Delaware.
4.8 Attorneys’ Fees. The prevailing Party in any legal action will be entitled to reasonable attorneys’ fees and costs.
4.9 Disputes. Disputes will be resolved through binding arbitration in Mercer County, New Jersey.
4.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties.
4.11 Notices. Notices shall be sent via email to the contacts listed in the Agreement.
4.12 Waiver. No waiver shall be valid unless in writing. A waiver of one breach shall not waive any subsequent breaches.
4.13 Termination. Either Party may terminate this Agreement or an applicable SOW upon thirty (30) days' notice of breach not cured within such period. If terminated due to Company’s breach, 98Strong shall remain entitled to full payment of the SOW.
4.14 Miscellaneous. This Agreement is binding on successors and assigns. Invalid provisions will not affect the rest of the Agreement. This Agreement may be executed in counterparts. Each Party confirms it had the opportunity to seek legal counsel and participated in drafting this Agreement.
98 Strong Inc.
99 Snowden Lane
Princeton, NJ 08540
Email: web@98Strong.com