Electriq Master Services Agreement

Updated: October 7, 2022

This Master Services Agreement, including all duly executed Work Orders, Change Orders, addenda and amendments (collectively, the “Agreement”) is entered into by and between DRINKS EIQ, LLC, doing business as Electriq (“Electriq”) with offices located at 10900 Wilshire Blvd., 16th Floor, Los Angeles, California 90024, on the one hand, and you or the legal entity you represent (“Client” or “you“), on the other hand. DRINKS EIQ, LLC and Client are each a “Party” hereto and may be referred to collectively as the “Parties”. This Agreement is dated and effective as of the date you sign any Work Order (the “Effective Date”) and sets forth the terms and conditions agreed to by the Parties with regard to the professional services provided here under.

1. SERVICES.

Electriq will provide the professional services (the “Services”) set forth in the applicable work order (each, a “Work Order”) in accordance with the terms of this Agreement. Each Work Order duly executed by the Parties on and after the Effective Date is incorporated herein by this reference as though fully set forth herein. The terms of a Work Order, including any Services or Fees set forth therein, may only be modified by a change order prepared by Electriq and duly executed by the Parties (“Change Order”). To the extent required for the successful performance of certain of the Services, Client will secure all necessary licenses and/or access credentials to all software and tools used by Client and specified in the Work Order or as mutually agreed by the Parties in order for Electriq to access Client’s accounts. Client hereby expressly authorizes Electriq to access Client’s computer systems, computer network(s), and accounts (including accounts with third-party marketing services, SaaS, or social media platforms or other platforms), and Customer Data to the extent commercially reasonable and necessary for the performance of the Services. Client agrees it will not withdraw or revoke this authorization during the Term of this Agreement as long as the Services are being performed in accordance with the terms of this Agreement, including the term of any applicable Work Order. Unless expressly set forth in the Work Order, Electriq shall have no obligation to set up any new accounts for Client for any service. The Parties agree Electriq may retain and use the services of independent contractors and subcontractors to assist it in the performance of the Services.

2. PAYMENT.

Client agrees to pay Electriq the fees stated in each applicable Work Order for Services rendered (collectively, “Fees”), pursuant to invoices issued by Electriq. All Fees for Services are due and payable in U.S. Dollars and are non-refundable. Invoices will be issued via email to the Client billing email address specified in the applicable Work Order. If payment terms are not otherwise specified in the applicable Work Order, all invoices are due and payable within 15 days of the date of the invoice (“Payment Due Date”). A retainer payable in advance and due immediately upon receipt of invoice (“Retainer”) is required prior to performance of any Services. The Retainer will be applied by Electriq toward payment of the final invoice and any Retainer balance remaining after payment of the final invoice shall be refunded to you within 30 days of the date Services are completed provided all other Work Orders you may have with Electriq are closed and/or terminated and all invoices have been paid in full. Past due invoice amounts will accrue interest at the rate of (i) 1.5% per month, or (ii) the maximum percentage amount per month permitted by Applicable Law, whichever is lower. In addition, Client agrees to reimburse Electriq for reasonable out-of-pocket expenses incurred while performing the Services, provided those expenses that exceed $100 have been approved by Client in advance in writing. Out-of-pocket expenses include costs such as travel, courier services, and other such costs as may be identified in the Work Order or in other writings (email sufficient) by Electriq (collectively, “Expenses”). In the event of a fee or payment dispute, Client agrees to pay the undisputed portion of any disputed invoice. Client must notify Electriq in writing no later than the Payment Due Date of an invoice that the invoice, or any portion thereof, is disputed and reasonably specify the purported error or disputed entry and the reasons for each such dispute. The Parties agree to work in good faith to resolve all disputes within 30 days of the date of notice of dispute. Electriq reserves the right to suspend the Services and withhold deliverables until all invoices, including any past due invoices, are paid in full. Failure to make payment in accordance with the terms in this Section 2 constitute a material breach of the Agreement by Client. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Client is responsible for payment of all such taxes (other than taxes based on Electriq’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees and the delivery of the Services. Electriq will not be liable for any tax levied upon or measured by the income of, or employment by, Client.

3. TERM AND TERMINATION.

This Agreement shall begin on the Effective Date and shall continue until the completion or expiration of all open, active Work Orders (“Term”) unless terminated pursuant to this Section 3. Either Party may terminate this Agreement and any Work Order if the other Party materially breaches any of the terms, conditions, or obligations set forth in this Agreement or the applicable Work Order and fails to correct such breach within fifteen (15) days following the non-breaching Party's delivery of written notice of such breach to the breaching Party. Upon such notice of breach and failure to cure, this Agreement and the applicable Work Order will be terminated effective as of the end of the fifteenth (15th) day after written notice of breach was delivered to the breaching Party (“Termination Date”). The Parties agree that notice of breach may be made by email with proof of digital delivery to the breaching Party. In the event of termination by Electriq for breach by Client, Client shall pay Electriq for all Expenses incurred by Electriq through the Termination Date in addition to all Fees for Services set forth in the applicable Work Order. In the event of termination by Client for breach by Electriq, Client shall pay Electriq all Fees for Services performed through the Termination Date in addition to all Expenses incurred by Electriq through the Termination Date. All deliverables specified in the applicable Work Order that are due on or before the Termination Date will be provided to Client once payment in full of all undisputed invoices has been received by Electriq.

4. OWNERSHIP OF MARKETING ASSETS AND INTELLECTUAL PROPERTY.

All of the advertising creatives, marketing and promotional content, campaigns, workflows, and marketing strategies created by Electriq on behalf of Client in performance of the Services (collectively, “Marketing Assets”) shall be the sole and exclusive property of Client. Client grants Electriq a non-exclusive, transferable, sublicensable (but solely for the purpose of this Agreement), fully paid up, worldwide, royalty-free license to use and publish the Marketing Assets in order to perform the Services during the Term. Prior works and derivative works prepared or developed by Electriq are expressly excluded from the Marketing Assets and shall be the property of Electriq. All trademarks, trade names, service marks, slogans, logos, other source identifiers (collectively, “Intellectual Property”) of Client accessed by Electriq in performance of the Services shall remain the sole and exclusive property of Client. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Client in the Services, or any part thereof, including any right to obtain possession of any software, source code, data or other technical material related to the Services, except in the event Client purchases web development Services from Electriq, in which case the resulting digital code shall become the property of Client upon receipt by Electriq of payment in full of all Fees and Expenses invoiced under the applicable Work Order(s). All Intellectual Property of Electriq shall remain the sole and exclusive property of Electriq and Client may not display, copy, duplicate, publish or use in any way the Intellectual Property of Electriq without Electriq’s express prior written approval.

5. OWNERSHIP AND HANDLING OF CUSTOMER DATA.

All of Client’s customer personal information including, without limitation, customer lists and email lists, and personally identifiable information of customers (collectively “Customer Data”) shall remain the sole and exclusive property of Client. The Services provided by Electriq are not intended to process any Customer Data, but to the extent that any Customer Data is processed by Electriq indirectly or incidentally, then for purposes of compliance with applicable privacy laws, Client agrees Electriq shall be deemed a “service provider” as that term is defined by the California Privacy Rights Act (Cal. Civ. Code § 1798.100 et seq., and its implementing regulations including the California Consumer Privacy Rights Act, as the same may be amended from time to time, collectively, “CPRA”); and Customer Data shall be disclosed to Electriq only for the limited business purpose of providing the Services as specified in this Agreement. For purposes of compliance with applicable privacy laws including, but not limited to the CPRA, to the extent Electriq is deemed a service provider Electriq agrees it will: (i) not further retain, use or disclose Customer Data except as necessary to perform the Services contemplated under this Agreement or as otherwise permitted by the CPRA; (ii) not sell or share Customer Data; (iii) implement and maintain reasonable security procedures and practices appropriate to the nature of the Customer Data to protect personal information from unauthorized or illegal access, destruction, use, modification, or disclosure; (iv) not combine Customer Data with personal information Electriq receives from or on behalf of another person(s) or that Electriq collects from its own interaction with consumers provided, however, nothing herein shall prevent Electriq from combining Customer Data as necessary to perform certain business purposes identified in regulations adopted by the California Privacy Protection Agency; (v) upon reasonable request, will provide Client with the personal information in its possession, and correct any inaccurate Customer Data, that was obtained in Electriq’s capacity as a service provider and cooperate with Client in responding to verifiable consumer requests, though nothing herein shall obligate Electriq to respond to any consumer requests; (vi) notify Client if it engages a sub-processor to process Customer Data, and will enter into a contract with any such sub-processor that contains the same requirements as those set forth in this Section 5 (i) – (vii); and (vii) notify Client if it can no longer meet the foregoing obligations set forth in (i) – (vi), herein. Upon such notice, or upon its own reasonable determination that Electriq has used the Customer Data in violation of the terms of this Agreement or the CPRA, Client may, upon reasonable prior notice, take reasonable and appropriate steps to stop and remediate the unauthorized use of Customer Data. Client agrees it shall not provide to Electriq any “sensitive personal information” as that term is defined by the CPRA.

6. CONFIDENTIAL INFORMATION.

“Confidential Information” means any information relating to or disclosed in the course of performance of this Agreement which, (i) if in tangible form, is labeled in writing as proprietary or confidential; (b) if in oral or visual form, the disclosing party has identified as proprietary or confidential at the time of disclosure; or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary and includes, without limitation: the terms of this Agreement (though not the existence of it), any information, idea, products, inventions, software code, computer programs, technical processes, trade secrets, data, database lists, Customer Data, technical information, sales and marketing activities, procedures, pricing policies, research, operating, financial, and other business affairs or related information, whether in oral, written, graphic or electronic form (collectively, “Confidential Information”). All Confidential Information of each Party is acknowledged as valuable, special and unique assets of that Party. The Parties agree to keep in strict confidence and not disclose to any third party any Confidential Information of the other Party which has been obtained during the Term of this Agreement except for any information (i) which is or becomes generally available to the public without a breach of this Agreement; (ii) which is a matter of common knowledge through no fault or breach of this Agreement by the receiving Party; (iii) is rightfully and lawfully in the possession of the receiving Party prior to its disclosure by the other Party as shown by such receiving Party’s files recorded prior to the time of disclosure; (iv) is independently developed by a Party without use or aid of, or reference to, the disclosing Party’s Confidential Information; or (v) which has been obtained from a third party without an obligation of confidentiality. Each Party shall take no less than reasonable measures to protect the other Party’s Confidential Information, including such measures taken by such Party to protect its own Confidential Information. Nothing in this Agreement will prevent either Party from using or continuing to use in the course of its business any general ideas, methodology, know-how or experience used or developed in the course of this Agreement.

7. REPRESENTATIONS AND WARRANTIES.

(i) Each Party represents, warrants and covenants to the other Party that: (a) it is a corporation or other legal entity duly organized and validly existing under the laws of its state of incorporation or formation; (b) it has the requisite corporate power and authority to execute, deliver and to perform its obligations under this Agreement; (c) this Agreement has been duly executed by its authorized representative and constitutes a valid and binding obligation, enforceable against it in accordance with its terms; and (d) to its knowledge, neither the execution and delivery of this Agreement nor the performance its obligations hereunder will violate or conflict with the provisions of any other agreement to which it is a party, or any Applicable Law of any domestic or foreign governmental, administrative or judicial authority. (ii) Electriq represents, warrants and covenants to Client that: (a) it possesses the requisite expertise, knowledge and skills necessary to perform the Services in accordance with that degree of care and skill ordinarily exercised by similar marketing agencies practicing in the Los Angeles area under similar circumstances; and (b) the Marketing Assets supplied by Electriq in connection with any Work Order do not and will not contain or promote violence, discrimination based on race, gender, religion, nationality, disability, sexual orientation, age, family status, or any other legally protected class. (iii) Client represents, warrants and covenants to Electriq that: (a) it has the right to grant to Electriq the licenses to use Intellectual Property pursuant to the terms of this Agreement and all applicable Work Orders; (b) it has the right to grant Electriq access to the software, tools, systems, platforms and accounts, whether that of Client or a third-party, as necessary to perform the Services as specified in the applicable Work Order; (c) it has a legal y sufficient privacy policy that is made available to consumers and customers from whom it collects data prior to their provision of any Customer Data to Electriq; (d) the licenses granted by Client to Electriq and the use of the Customer Data under this Agreement will not infringe, misappropriate, or otherwise violate the intellectual property rights or other rights of any third party including, without limitation, trade secret, patent, copyright and trademark rights; and (e) Client will comply with all 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 (collectively, “Applicable Law”), including without limitation all applicable privacy and email marketing laws, during the Term of this Agreement.

8. DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Electriq MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND GIVES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES OR ANY WORK PRODUCT PROVIDED UNDER THIS AGREEMENT OR ANY WORK ORDER AND Electriq SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. Electriq DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF USING THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CUSTOMER BASE, OR COMMERCIAL ADVANTAGE. Electriq SHALL NOT BE LIABLE TO CLIENT, ANY USER OR ANY THIRD PARTY FOR ANY USE OF OR INACCURACY IN ANY MARKETING ASSETS.

9. LIMITATION OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY WORK ORDER OR THE USE OF OR INABILITY TO USE THE SERVICES, WORK PRODUCT, MARKETING ASSETS, OR ANY THIRD-PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT WILL Electriq BE LIABLE TO CLIENT FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNTS PAID OR PAYABLE TO Electriq OVER THE MOST RECENT TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES UNDER THE TERMS OF THIS AGREEMENT AND THE APPLICABLE WORK ORDER(S) HEREUNDER. IN NO EVENT WILL Electriq BE LIABLE TO CLIENT FOR ANY DELAYS CAUSED BY CLIENT OR ANY THIRD PARTIES. CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION 9 ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY Electriq FOR THE SERVICES AND THAT IF Electriq WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED.

10. INDEMNITY.

(i) Except to the extent caused by the gross negligence or willful misconduct of Client or its affiliates, subsidiaries, partners, members, agents, employees, directors or officers, Electriq hereby agrees to indemnify, defend and hold harmless Client, its officers, directors and employees (collectively, “Client Indemnitees”) from and against damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and legal costs and expenses directly related thereto) suffered or incurred by Client Indemnities as a result of, or in connection with, any claims of a Third Party to the extent caused by the gross negligence or willful misconduct of Electriq in the performance of the Services under this Agreement. In no event shall the aggregate liability of Electriq to Client Indemnitees for any damages concerning Electriq’s or its subcontractors’ performance or nonperformance of the Services or any other matter arising out of, or related to, this Agreement (regardless of whether any such claim for such damages is based in contract or in tort) exceed the amounts actually paid to Electriq by Client pursuant to this Agreement. (ii) Except to the extent caused by the gross negligence or willful misconduct of Electriq or its affiliates, subsidiaries, partners, members, agents, employees, directors or officers, Client hereby agrees to indemnify, defend and hold harmless Electriq, its officers, directors, employees and subcontractors (collectively, “Electriq Indemnitees”) from and against damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and legal costs and expenses directly related thereto) suffered or incurred by Electriq Indemnities as a result of, or in connection with, any claims of a Third Party to the extent caused by: (a) Client’s breach of this Agreement; (b) the uncured material breach of any of Client’s representations or warranties hereunder; (c) Client’s violation of any Applicable Law; or (d) the gross negligence or willful misconduct of Client. (iii) For purposes of this Section 10, “Third Party” shall not include any of either Party’s Affiliates, including their employees, agents, directors, managers, directors and shareholders or equity owner, and “Affiliate” shall mean any person, company or other entity which directly or indirectly controls, is controlled by, or is under joint control with that company or entity. For this purpose, an entity is deemed to control another entity if it owns, directly or indirectly, at least fifty percent of the capital of the other entity, or, in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such entity. (iv) Any Party entitled or potentially entitled to indemnification under this Agreement (“Indemnitee”) shall give notice to the indemnitor (“Indemnitor”) of a claim or other circumstance likely to give rise to a request for indemnification (a “Claim”), as promptly as reasonably practicable after such Indemnitee becomes aware of the same. The Indemnitor shall have sole control of the defense and settlement of each Claim, subject to the terms of this Section 10. The Indemnitee shall have the right to participate in the defense and settlement negotiations of such Claim through its own counsel at its own expense. If Indemnitor has not assumed the defense of a Claim within fifteen (15) days after the giving of notice of a Claim by Indemnitee under this Section 10, the Indemnitee may thereupon undertake the defense thereof on behalf of, and the risk and expense of, the Indemnitor, with all reasonable costs and expenses of such defense to be paid by the Indemnitor. Indemnitee shall reasonably cooperate with the defense and settlement of any Claim. The Indemnitor shall not agree to any compromise or settlement of any such Claim without the prior written consent of the Indemnitee.

11. NON-SOLICITATION.

Client agrees to refrain from knowingly soliciting for hire or knowingly hiring as an employee, consultant or in any other capacity any employee, consultant or subcontractor of Electriq that is performing work for Client during the Term of this Agreement or any applicable WO, and for one year after the termination or expiration of: (i) the Agreement, or (ii) the applicable Work Order, whichever occurs later. For the purposes of this Section 11, “soliciting” and “hiring” includes any solicitation or hiring for any reason or from any source, including solicitation or hiring resulting from either general advertising or engagement of a search consultant who obtains the resume of an Electriq employee, consultant or subcontractor.

12. PRESS RELEASES, CASE STUDIES AND USE OF LOGO.

Each Party will submit to the other Party, for its prior written approval, any press release, case study, or any other public statement ("Press Release") regarding the Services and transactions contemplated under the terms of this Agreement. Notwithstanding the foregoing, Electriq may use Client’s name and logo in marketing materials and on its website to identify Client as a customer of Electriq, and Client hereby grants to Electriq during the Term of this Agreement a limited, royalty-free, non-exclusive license, without right to sublicense, to use the trademarks and logos of Client for this limited marketing purpose. Electriq will abide by any standard trademark or logo usage requirements provided in writing by Client. Client shall use reasonable efforts to engage in being a case study if requested by Electriq. Client acknowledges and agrees that Electriq does not certify or endorse, and has no obligation to certify or endorse, any of Client’s products, services, or content.

13. ATTORNEYS’ FEES.

In the event of any legal action between the Parties arising under or relating to this Agreement, the reasonable costs, expenses and attorneys’ fees incurred by the prevailing Party including, but not limited to, the costs, expenses and attorneys’ fees incurred in pursuing any appeal and collecting any judgment, shall be assessed against the other Party in such action. If any such action involves both claims and counterclaims, and if each Party shall have judgment rendered in its favor on one or more such claims or counterclaims, the Party whose total judgments in such action is greatest shall be deemed the prevailing Party for purposes of this Section 13.

14. INDEPENDENT PARTIES.

Each Party is and will remain an independent contractor. This Agreement does not constitute or create any partnership, joint venture or principal-agent relationship, nor is either Party a franchisee, agent, or legal representative of the other for any purpose. Neither Party has the authority to act for, bind, or make commitments on behalf of the other Party.

15. NOTICES.

Any notice to be given under this Agreement will be in writing, will be delivered in person, by email with digital delivery confirmation, by registered or certified mail, postage prepaid, return receipt requested, or nationally recognized overnight delivery service with proof of delivery (e.g., Federal Express, UPS), to Client at the Client Business Address set forth in the applicable Work Order, and to Electriq at 1125 E. Broadway, #173, Glendale, CA 91205, as the same may be updated from time to time by written notice from one Party to the other.

16. NO WAIVER.

No waiver by either Party to this Agreement of any provision hereof, and no failure by either Party to exercise any of such Party’s rights or remedies hereunder, will be deemed to constitute a waiver of such provision, right or remedy in the future, or of any other provision, right, or remedy hereunder, unless such waiver will be set forth in a written instrument signed by the Party against whom such waiver is sought to be enforced.

17. SEVERABILITY.

Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement or any Work Order so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. In the event of a conflict between the terms of this Agreement and any Work Order, or if the Work Order amends any terms of this Agreement, the terms of the Work Order shall control with regard to the specific provision(s) conflicting with the provisions of this Agreement.

18. COUNTERPARTS AND ELECTRONIC SIGNATURES.

This Agreement may be executed in multiple counterparts, each of which shall be deemed an original agreement and both of which shall constitute one and the same agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature (including PDF format) by either of the Parties and the receiving Party may rely on the receipt of such document so executed and delivered electronically or by facsimile as if the original had been received.

19. GOVERNING LAW AND DISPUTE FORUM.

This Agreement will be governed by the Laws of the State of California without regard to its conflict of laws principles, and both Parties consent to the jurisdiction of the state and federal courts sitting in the State of California. Venue for purposes of any action brought in connection with or arising out of this Agreement shall be conclusively presumed to be in the County of Los Angeles, California.

20. SURVIVAL.

The following provisions of this Agreement and any other sections which, by their nature, are intended to survive termination hereof shall so survive and shall be binding upon the Parties and their successors and permitted assigns: Section 2 (Payment), Section 3 (Term and Termination), Section 4 (Ownership of Marketing Assets and Intellectual Property), Section 5 (Ownership and Handling of Customer Data), Section 6 (Confidential Information), Section 7 (Representations and Warranties), Section 8 (Disclaimer of Warranties), Section 9 (Limitation of Liability), Section 10 (Indemnity), Section 11 (Non-solicitation), Section 13 (Attorneys’ Fees), Section 15 (Notices), Section 16 (No Waiver), Section 17 (Severability), Section 19 (Governing Law and Dispute Forum), Section 20 (Survival) and Section 21 (Entire Agreement).

21. ENTIRE AGREEMENT.

This Agreement constitutes the complete and exclusive statement of the agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, communications, arrangements, promises, assurances, warranties, representations and understandings between the Parties (both oral and written) relating to that subject matter and no agreement, communication, arrangement, promise, assurance, warranty, representation, discussion, collateral contract or understanding of any kind, oral or written, shall be binding upon the Parties unless incorporated herein. Each Party acknowledges and agrees that in entering into this Agreement it has not relied on and shall have no remedy in respect of any agreement, communication, arrangement, promise, assurance, warranty, representation, discussion, collateral contract or understanding (whether negligently or innocently made) except those expressly set forth in this Agreement. Except as expressly stated herein to the contrary, this Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any of Client’s forms, agreements or documents or any other documentation or electronic system terms, including, without limitation, terms contained in any written or electronic communication or “click-wrap” or click-through agreement required to access any account, software or platform, and are hereby rendered null and void and without effect as between Client and Electriq. This Agreement may be modified only by a writing signed by the authorized representatives of both Parties.