Exhibit 10.52
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Datapak Services
Corporation
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New
Hudson ··· Phoenix ··· Reno
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MASTER SERVICES
AGREEMENT
This MASTER SERVICES AGREEMENT (this “Agreement”) is
made effective as of January 1, 2008, by and between Datapak
Services Corporation, a Michigan corporation
(“Datapak”), and Bare Escentuals Beauty , Inc. a
Delaware corporation (“Bare Escentuals”).
RECITALS
WHEREAS, Datapak provides comprehensive inventory warehousing,
order fulfillment, call center and administrative services;
and
WHEREAS, Datapak desires to provide such services to Bare
Escentuals, and Bare Escentuals wishes to purchase such services
from Datapak, upon the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as
follows:
1.
SERVICES.
Datapak shall provide to
Bare Escentuals all services (the “Services”) set forth
on the Schedule of Work (“SOW”) attached as Schedule
1 to this Agreement. The SOW may be amended or modified
at any time during the Term (as defined in Section 4 of
this Agreement) upon the mutual agreement of the parties, which
shall be set forth in writing and executed by an authorized
representative of each party.
PRICING;
PAYMENT. In consideration of the provision of services
set forth on the SOW and otherwise in this Agreement, Bare
Escentuals agrees to make payment to Datapak in accordance with the
“Pricing Schedule” set forth on Schedule 1 to
this Agreement. All payments shall be due within thirty (30) days
of receipt by Bare Escentuals of an invoice from Datapak, except
for invoices related solely to transportation costs, which invoices
shall be paid within ten (10) days of receipt.
2.
AUDIT.
Datapak agrees to maintain
complete records of each transaction involving the purchase, sale,
or shipping of any Bare Escentuals merchandise by Datapak for a
period of two (2) years following the transaction. Upon
reasonable notice, Bare Escentuals (or a certified public
accountant appointed by Bare Escentuals in its sole discretion)
shall have the right to audit Datapak’s invoices and business
processes to verify that they are in compliance with the Pricing
Schedule. In the event that such audit indicates that Datapak
has overcharged Bare Escentuals by more than two percent (2%), then
such overpaid amount plus the costs of such audit, shall be
immediately paid by Datapak to Bare Escentuals.
TERM. This Agreement shall become effective on
January 1, 2008, and shall continue in effect until terminated
by either party on 30 days written notice to the other.
3.
OWNERSHIP OF
INVENTORY/CUSTOMER DATA.
a.
Bare Escentuals’ Proprietary Rights. The Bare Escentuals’
merchandise warehoused or otherwise held by Datapak, and any and
all customer data or other Confidential Information (as defined in
Section 7 of this Agreement) obtained or learned by
Datapak pursuant to this Agreement involve valuable patent,
copyright, trade secret, trade name, trademark and other
proprietary rights of Bare Escentuals. No title to or
ownership of any such proprietary right is transferred to Datapak
under this Agreement or by use of any trademark, patent or other
proprietary right. Bare Escentuals reserves all such
proprietary rights. Datapak will not infringe, misappropriate
or violate any proprietary rights of Bare Escentuals. Without
limiting the generality of the foregoing, Datapak will not register
or attempt to register, directly or indirectly, any such patents,
copyrights, trade names, trademarks or other proprietary rights
other than in the name of Bare Escentuals. Bare Escentuals
shall own all of the merchandise and other inventory it deposits in
Datapak’s warehouses (collectively, the “Inventory),
and all of the customer data.
b.
Datapak’s Proprietary Rights. Datapak is not authorizing,
selling, transferring, licensing or permitting the use of any of
its intellectual property, including but not limited to proprietary
data, formulas, database structures, database format, computer
applications, programming and software owned, licensed or developed
by Datapak. All computer applications, programming and
software, either purchased, owned, licensed or developed by Datapak
in connection with any services rendered by Datapak under this
Agreement shall remain exclusive property of Datapak and the Bare
Escentuals shall never have any right, entitlement or claim to said
property, and Bare Escentuals disclaims all rights, claims, or
entitlement to same.
4.
CONFIDENTIALITY.
“Confidential
Information” means information that is provided by or on
behalf of either party (the “Discloser”) to the other
party (the “Recipient”), or to which a party otherwise
gains access, in the course of or incidental to the performance of
this Agreement, is of value to the Discloser and is not generally
known to others, including, without limitation, customer lists,
customer information, employee lists, technology, processes,
marketing techniques, price lists, pricing policies, business
methods, contracts and contractual relations with the
Discloser’s customers and suppliers, know-how, software,
future and proposed products and services, financial information,
business forecasts, sales and merchandising, and marketing plans
and information. Confidential Information may be disclosed in
written or other tangible form (including on magnetic media) or by
oral, visual or other means. The terms, conditions and
provisions of this Agreement shall be deemed by the parties hereto
to be
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Confidential
Information of both parties hereto. The Recipient of
Confidential Information shall use the Confidential Information
only for the purposes of this Agreement or as otherwise expressly
permitted by this Agreement. Recipient of Confidential
Information shall protect such Confidential Information from
disclosure to others, using the same degree of care used to protect
its own confidential or proprietary information of like importance,
but in any case using no less than a reasonable degree of
care. Recipient may disclose Confidential Information
received hereunder (a) to its affiliates, (b) to
Recipient’s employees and independent contractors, and
(c) to Recipient’s affiliate’s employees and
independent contractors, and who in all of the foregoing cases have
a need to know such information and are bound to protect the
received Confidential Information from unauthorized use and
disclosure under terms no less restrictive than those contained in
this Agreement. Confidential Information shall not otherwise
be disclosed by Recipient to any third party without the prior
written consent of the Discloser. The restrictions herein on
the use and disclosure of Confidential Information shall not apply
to information that: (i) was publicly known at the time
of Discloser’s communication thereof to Recipient or becomes
publicly known through no fault of Recipient subsequent to the time
of such communication; (ii) was in Recipient’s
possession free of any obligation of confidence at the time of
Discloser’s communication to Recipient; (iii) is
developed by Recipient independently of and without reference to
any of Discloser’s Confidential Information or other
information that Discloser disclosed in confidence to any third
party; (iv) is rightfully obtained by Recipient from third
parties authorized to make such disclosure without restriction;
(v) is identified in writing by the Discloser as no longer
proprietary or confidential. In the event Recipient is
required by law, regulation or court order to disclose any of
Discloser’s Confidential Information, Recipient will promptly
notify Discloser in writing prior to making any such disclosure and
shall reasonably cooperate in any efforts of Discloser to seek a
protective order or other appropriate remedy from the proper
authority. If Discloser is not successful in precluding the
requested disclosure, Recipient will furnish only that portion of
the Confidential Information that is legally required and will
exercise all reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded the Confidential
Information. All Confidential Information disclosed under
this Agreement (including information in computer software or held
in electronic storage media) shall be and remain the property of
Discloser or its licensors. All such information in any computer
memory or data storage apparatus shall be erased or destroyed, and
all such information in tangible form in the possession or under
the control of the Recipient shall, at the discretion of the
Recipient, either be destroyed or returned to the Discloser
promptly upon the earlier of: (i) the written request of the
Discloser or (ii) termination or expiration of this Agreement,
and in any of such events and to the applicable extent shall not
thereafter be retained in any form by or through Recipient unless
otherwise expressly permitted hereunder.
5.
INSURANCE/RISK OF
LOSS.
a.
Insurance . Datapak shall maintain in full force
and effect policies of insurance for the full replacement cost of
all Bare Escentuals’ merchandise located in Datapak’s
warehouses. Datapak shall likewise maintain in full force and
effect policies of insurance on buildings and equipment at
Datapak’s facilities, including commercial general liability
insurance, property damage and personal injury insurance and fire
and theft coverage with limits (in combination with excess
liability insurance) of Two Million Dollars ($2,000,000) per
occurrence combined single limit and Four Million Dollars
($4,000,000) in the aggregate, and shall maintain
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workers’
compensation coverage as required by applicable law. Such
policies of insurance shall be issued by a responsible insurer
satisfactory to Bare Escentuals, shall include Bare Escentuals as
an additional insured, shall provide Bare Escentuals not less than
thirty (30) days advance notice of cancellation or material change
in the policy, and shall not i
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