Master Agreement

This master agreement governs the relationship between us and your company. It is required for most sales and recommended when it’s not required to protect the data we have. If you have any questions, please contact us

1. GENERAL PROVISIONS.

1.1 Agreement.  Subject to the terms and conditions of this Agreement and the payment of all fees, Client agrees to purchase and Zentek agrees to convey to Client the items and services as may be listed on the exhibits attached to this Agreement (the “Exhibits”) at the pricing set forth therein.  In the event the parties enter into a written order hereafter, such order(s), upon execution by both parties, is incorporated into this Agreement (“Subsequent Order”).

1.2 Term.  Unless otherwise terminated as provided in this Agreement, the initial term of this Agreement (the “Initial Term”) for the purposes of Zentek’s provision of services to Client shall be for six months, beginning on the date of this Agreement.  Thereafter, this Agreement shall automatically renew for additional six-month term(s) (each a “Renewal Term”) until a party provides the other party with no less than 30 days written notice prior to the end of the Term that it does not intend to renew the Agreement.  Collectively, the “Initial Term” and all “Renewal Terms” are referred to as the “Term”.

1.3 Binding Effect.  As of the Effective Date, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors.  This Agreement, to the extent signed and delivered by means of facsimile or e-mail, will be treated in all manner and respects, and will have the same binding effect, as an original document.  Client consents to receipt of information from Zentek by e‑mail and facsimile.

1.4 Assignment.  This Agreement and any rights and obligations may not be assigned or otherwise transferred in whole or in part by Client without the prior written consent of Zentek and upon the terms and conditions as Zentek in its sole discretion may require.  Zentek shall have the right to assign this Agreement and to contract with third parties to perform any or all of the services set forth in this Agreement.

1.5 Force Majeure.  Zentek will not be liable for failure to perform any of its obligations under this Agreement or the Exhibits and Subsequent Orders, if the failure is caused by an event outside its reasonable control, including acts of God, war, acts of public enemy, terrorism, accidents, fires, explosions, earthquakes, floods, the elements, other natural disasters, electrical failures, strikes, labor disputes, shortage of suitable parts, materials, transportation or any similar causes beyond the reasonable control of Zentek.

1.6 Governing Law.  The laws of the state of Alabama shall govern the validity of this Agreement, the construction and enforcement of its terms, the interpretation of the rights and duties of the parties and all other matters relating to this Agreement.  Regardless of any place to which any of the parties may move and maintain residence, legal domicile, or situs at any time, each agrees, to the maximum extent permitted by law, that any action against them based on this Agreement or any document or instrument delivered in accordance with this Agreement may only be instituted in the federal or state courts located in Tuscaloosa County, Alabama and, to the maximum extent permitted by law, each hereby irrevocably consents to the jurisdiction of such court and waives any jurisdictional defenses that each may have to the institution of such an action in such court.

1.7 Miscellaneous.  This Agreement and all modifications or amendments to this Agreement, will not be effective unless made in writing and signed by an authorized representative of each party.  All the terms, provisions, and conditions of this Agreement shall be deemed to be severable in nature.  If for any reason the provisions of this Agreement are held to be invalid or unenforceable by a court of competent jurisdiction, to the extent that such provisions are valid and enforceable, such court shall construe and interpret this Agreement to provide for maximum validity and enforceability.

1.8 Amendments to Comply with Law.  The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to provide for procedures to ensure compliance with such developments.

1.9 Notice.  Any notice required or permitted to be given under this Agreement shall, except where specifically provided otherwise. be given in writing by personal delivery, certified mail, or overnight delivery to the address set forth in this Agreement for each party (notices to Zentek shall be sent to the attention of the President), and the date upon which such notice is received shall be deemed to be the date of receipt of the notice or on written refusal to accept delivery, irrespective of the date appearing on the notice.  Any party may change the address to which notices are to be delivered to such party, by a notice given in accordance with this Paragraph 1.9 to the other parties.

1.10 Further Assurances.  Client shall execute such additional documents and instruments as may be reasonably required by counsel for Zentek to carry out the purpose and intent of this Agreement.

1.11 Final Integration.  This Agreement, along with the Exhibits, constitutes the entire agreement of the parties, as a complete and final integration thereof with respect to its subject matter.  All prior understandings and agreements between and among the parties are merged into this Agreement, which alone fully and completely expresses their understandings.  No representation, warranty, or covenant made by another party that is not contained in this Agreement or expressly referred to in this Agreement has been relied on by another party in entering into this Agreement.

1.12 Survival of Representations and Obligations.  The representations, warranties, and covenants made pursuant to and contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated in this Agreement.  Any obligation of a party that contemplates performance of such obligation after termination or expiration of this Agreement, or any part of this Agreement, shall be deemed to survive such termination or expiration.

1.13 Multiple Counterparts.  Any number of counterparts of this Agreement may be executed by execution of separate signature pages by each of the parties and transmission by facsimile, expedited delivery service, and/or U.S. mail for assembly into an integrated document or otherwise as the parties may agree.  Each such counterpart thus executed shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.

1.14 Construction.  This Agreement shall be construed in its entirety according to its plain meaning and shall not be construed against the party who provided or drafted it.

1.15 Gender and Number.  All personal pronouns used in this Agreement shall include all genders, whether used in the masculine, feminine, or neuter gender.  Singular nouns and pronouns shall include the plural, as may be appropriate, and vice versa.

1.16 Time of the Essence. Time is of the essence as to each provision of this Agreement.

1.17 Definitions.  As used in this Agreement, the Exhibits, and any Subsequent Orders, the following terms will have the meanings described below.

Confidential Information shall mean all information provided by one party to the other party or available to such party, which is not generally known to others, whether or not marked as confidential, provided by or learned about by a party in the course of the parties’ dealings with one another, or their predecessors, including proprietary information, ideas, concepts, the terms of this Agreement, and any other information not generally known to others.

Notwithstanding the foregoing, Confidential Information does not include information that (i) is known to the receiving party at the time of disclosure to the receiving party as demonstrated by written or electronic records of the receiving party, (ii) is or becomes generally known through no wrongful act of the receiving party, (iii) has been rightfully received by a party from a third party authorized to make such disclosure without restriction, (iv) has been approved for release by written authorization of the disclosing party, or (v)  is required by law or regulation to be disclosed, to the extent so disclosed after delivery of prior written notice to the other party.

2. FEES AND PAYMENTS.

2.1 Fees and Payments.  Client will pay to Zentek the fees, amounts, and expenses due Zentek as specified on the applicable Exhibits or Subsequent Orders.

2.2 Failure to Pay. Failure to make any payment due to Zentek in accordance with this Agreement may result in the cessation of all services from Zentek to Client immediately until payment is received.  Also, Zentek shall have the option to terminate this Agreement and all services provided under the Agreement.  In addition to the foregoing, Zentek will charge a late fee on fees, amounts, and expenses not paid to Zentek as provided in this Agreement at the lesser of the maximum amount chargeable by law or 1.5% per month commencing 15 days after the date payment was due.  In addition, Client agrees to pay all reasonable expenses incurred by Zentek in enforcing any collection of fees or other rights under this Agreement including, but not limited to, all attorneys’ fees and expenses of any proceeding related thereto.  All payments received will be applied against the invoice outstanding the longest, interest first and then principle, continuing in this manner until each invoice is paid in full.

2.3 Payment Terms.  All payments are non-refundable, due in U.S. dollars, and may be paid by electronic funds transfer (“EFT”).  If Client elects to make EFT payments, Client authorizes Zentek to make direct debit of Client’s designated account for all payments due under this Agreement and will execute such documents deemed necessary by Zentek to authorize such activity.

2.4 Taxes.  The fees and expenses due to Zentek as set forth in this Agreement are net amounts to be received by Zentek, exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by Client or imposed on Zentek, the performance of this Agreement, or otherwise due as a result of this Agreement.  Client will be responsible for and will pay any and all such taxes and charges.

2.5 Expenses.  Unless specified otherwise, Client will reimburse Zentek for all out-of-pocket expenses reasonably incurred in rendering services to Client.  Expenses will include reasonable travel and transportation expenses, lodging and meals, and the cost of any shipping costs, communications charges, telephone calls, and other related expenses.

2.6 Credit.  In the event Zentek extends credit to Client under this Agreement, Client and Guarantor authorize Zentek and its agents, successors, and assigns, to obtain personal credit information including bank account numbers and balances, or obtain information from references either provided or hereafter acquired, for present and future needs.  Client and Guarantor hereby authorize the appropriate parties to release all information that is requested regarding any accounts held by Client or Guarantor for the purpose of establishing an account with Zentek or collecting a debt owed to Zentek.

3. TERMINATION.

3.1 Termination for Cause.  In the event that either party materially defaults in the performance of any of its obligations under this Agreement and does not substantially cure such default, or commence a cure, within 15 days after being given written notice specifying the default, the non-defaulting party may, by giving written notice to the defaulting party, terminate this Agreement as of a date specified in such notice of termination.  The specified date shall be at least 15 days after the notice of termination, except for termination for non-payment which may be immediately after the 15-day cure period.  Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to limit a party’s right to seek immediate injunctive or other equitable relief if a breach of this Agreement would subject such party to irreparable harm, such relief to be without the necessity of posting a bond, cash, or otherwise.

3.2 Early Termination.  Either party, at its option, may terminate this Agreement, or any applicable Exhibit, immediately on, or at any time within 90 days after, written notice if any of the following occurs:

The other party applies for or consents to the appointment of a receiver, trustee, or liquidator of all or a substantial part of its assets, files a voluntary petition in bankruptcy, makes a general assignment for the benefit of its creditors, files a petition or answer seeking reorganization or arrangement with its creditors, or admits in writing its inability to pay its debts when due;

The other party ceases operations or the Guarantor begins working for another entity or under another name;

The Guarantor dies (unless timely replaced with a new guarantor acceptable to Zentek); or

The other party suffers any order, judgment, or decree which continues unstayed and in effect for 60 days after its entry and which materially impacts its ability to continue to operate.

3.3 Effect of Termination.  Upon termination for any reason, other than a Zentek Breach (defined as a material breach by Zentek as determined by a court of competent jurisdiction), Client will pay Zentek for all services performed by Zentek up to the date of such termination and all other amounts Client owes to Zentek under this Agreement.

3.4 Costs on Default.  In the event of a default under this Agreement by any party as to any duty, warranty, or undertaking owed to another party, which default results in efforts by the non‑defaulting party to remedy same (whether or not a lawsuit is filed), the defaulting party shall pay, in addition to such other sum as may be due under this Agreement, all costs and expenses of such efforts, including, but not limited to, reasonable attorneys’ fees and expenses.

3.5 No Waiver.  No delay or failure in exercising any right under this Agreement and no partial or single exercise of the right will be deemed to constitute a waiver of such right or any other rights under this Agreement.  No consent to a breach of any express or implied term of this Agreement will constitute consent to any prior or subsequent breach.

3.6 Waiver of Default.  No waiver by any party of any default, breach, or violation of any term, condition, or provision of this Agreement shall be deemed a waiver of any other default, breach, or violation of the same or any other term, condition, or provision contained in this Agreement.

3.7 Survival.  Termination of this Agreement will not terminate each party’s obligations under the provisions of Section 1 (General Provisions), Section 2 (Fees and Payments), Paragraph 3.3 (Effect of Termination), Paragraph 3.7 (Survival), Section 4 (Nondisclosure and Confidentiality), Paragraph 6 (Warranty Limitations), and Section 7 (Limitation of Liability), all of which survive termination and/or non-renewal.

4. NONDISCLOSURE AND CONFIDENTIALITY.  Each party may have access to Confidential Information of the other party.  The recipient of such Confidential Information agrees to hold such information in strictest confidence and not to disclose, or cause to be disclosed, the information to any third party, other than an authorized agent or contractor of Zentek, or utilize the Confidential Information for any purpose other than as expressly contemplated by this Agreement.  Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement.  Each party agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for breach of this paragraph and that such breach would cause irreparable harm to the other; therefore the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it may have at law or under this Agreement, such relief to be without the necessity of posting a bond, cash, or otherwise.

5. SITE ACCESS.  Zentek will be permitted access to Client’s premises, employees, and system during and outside of Client’s normal working hours, with reasonable prior notice to Client as Zentek deems necessary for the performance of Zentek’s obligations under this Agreement.

6. WARRANTY LIMITATIONS.  OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ZENTEK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES TO CLIENT, WITH RESPECT TO THE ANY SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT OR OTHERWISE REGARDING THIS AGREEMENT.  WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

7. LIMITATION OF LIABILITY.

7.1 LIMITATION OF REMEDY.  IN NO EVENT WILL ZENTEK BE LIABLE FOR ANY COMPENSATORY, SPECIAL, INDIRECT, INCIDENTAL, SPECULATIVE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, DATA, OR USE INCURRED BY CLIENT OR ANY THIRD PARTY, EVEN IF ZENTEK HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 MAXIMUM LIABILITY.  IN NO EVENT WILL ZENTEK’S LIABILITY FOR ANY COSTS, EXPENSES, OR DAMAGES TO CLIENT OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE, EVER EXCEED THE AMOUNT RECEIVED BY ZENTEK FROM CLIENT FOR THE APPLICABLE PRODUCT(S) OR SERVICE(S) DURING THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ACTION.

7.3 Allocation of Risk.  Client is a sophisticated purchaser and acknowledges and agrees that the allocation of risks in this Agreement are reflected in the amounts due from Client and other charges provided under this Agreement, that Zentek cannot control the manner in which Client uses its computer systems, and that the allocation of risks under this Agreement are reasonable and appropriate under the circumstances.

8. NON-SOLICITATION.  Zentek and Client agree that, without the prior written consent of the other party, neither will offer employment to or discuss employment with any of the other party’s associates or employees until one year after this Agreement is terminated; provided, the foregoing provision will not prohibit a general non-targeted solicitation of employment in the ordinary course of business or prevent either party from employing any employee who contacts such party at his or her own initiative.

9. GUARANTY. Guarantor hereby unconditionally guarantees to Zentek the timely performance by Client of all of its duties and obligations set forth in this Agreement, including payment of all amounts due to Zentek.  All references in this Agreement or the use of the term “Client” shall include Guarantor.  The liability of Client and Guarantor to Zentek shall be joint and several.

10. OTHER.

10.1 Expenses and Licenses.  Each party is responsible for obtaining and maintaining, at its own expense, all licenses, permits, or other items necessary to conduct its business, including all required insurance and bonding.

10.2 Indemnification.  Client hereby covenants and agrees to indemnify and hold harmless Zentek, its successors and assigns, including its directors, officers, shareholders, employees, and agents, from and against all damage, costs, loss, and expense, including any attorneys’ fees, which Zentek may suffer or incur as a result of the actions or omissions of Client and its employees or agents or their breach of this Agreement.

10.3 Conflict.  Terms of this Agreement that are inconsistent with the terms of the applicable Exhibit shall be governed by the terms in the specific Exhibit.