**Exhibit 10.53**

** **

| Datapak  Services Corporation | New Hudson ··· Phoenix ··· Reno |
|-------------------------------|---------------------------------------------------------------|

 

MASTER SERVICESAGREEMENT

 

                This MASTER SERVICES AGREEMENT(this “Agreement”) is made effective as of January 1, 2008, by and betweenDatapak Services Corporation, a Michigan corporation (“Datapak”), and BareEscentuals Beauty , Inc. a Delaware corporation (“Bare Escentuals”).

 

**RECITALS**

 

                WHEREAS, Datapak providescomprehensive inventory warehousing, order fulfillment, call center andadministrative services; and

 

                WHEREAS, Datapak desires toprovide such services to Bare Escentuals, and Bare Escentuals wishes topurchase such services from Datapak, upon the terms and conditions set forth inthis Agreement.

 

**AGREEMENT**

 

                NOW, THEREFORE, in considerationof the foregoing recitals and the mutual promises hereinafter set forth, theparties 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 thisAgreement.  The SOW may be amended ormodified at any time during the Term (as defined in Section 4 ofthis Agreement) upon the mutual agreement of the parties, which shall be setforth in writing and executed by an authorized representative of each party.

 

**PRICING; PAYMENT. **Inconsideration of the provision of services set forth on the SOW and otherwisein this Agreement, Bare Escentuals agrees to make payment to Datapak inaccordance with the “Pricing Schedule” set forth on Schedule 1 to thisAgreement. All payments shall be due within thirty (30) days of receipt by BareEscentuals of an invoice from Datapak, except for invoices related solely totransportation costs, which invoices shall be paid within ten (10) days ofreceipt.

 

**2.            ****AUDIT. **Datapak agrees to maintain complete records of each transactioninvolving the purchase, sale, or shipping of any Bare Escentuals merchandise byDatapak for a period of two (2) years following the transaction.  Upon reasonable notice, Bare Escentuals (or acertified public accountant appointed by Bare Escentuals in its solediscretion) shall have the right to audit Datapak’s invoices and businessprocesses to verify that they are in compliance with the Pricing Schedule.  In the event that such audit indicates thatDatapak has overcharged Bare Escentuals by more than two percent (2%), thensuch overpaid amount plus the costs of such audit, shall be immediately paid byDatapak to Bare Escentuals.

 

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                **TERM. **This Agreement shall becomeeffective on January 1, 2008, and shall continue in effect untilterminated by either party on 30 days written notice to the other.

 

**3.            ****OWNERSHIP OF INVENTORY/CUSTOMER DATA.**

 

**a.             Bare Escentuals’Proprietary Rights.**  The BareEscentuals’ merchandise warehoused or otherwise held by Datapak, and any andall customer data or other Confidential Information (as defined in Section 7of this Agreement) obtained or learned by Datapak pursuant to this Agreementinvolve valuable patent, copyright, trade secret, trade name, trademark andother proprietary rights of Bare Escentuals. No title to or ownership of any such proprietary right is transferred toDatapak under this Agreement or by use of any trademark, patent or otherproprietary right.  Bare Escentualsreserves all such proprietary rights. Datapak will not infringe, misappropriate or violate any proprietaryrights of Bare Escentuals.  Withoutlimiting the generality of the foregoing, Datapak will not register or attemptto register, directly or indirectly, any such patents, copyrights, trade names,trademarks or other proprietary rights other than in the name of BareEscentuals.  Bare Escentuals shall ownall of the merchandise and other inventory it deposits in Datapak’s warehouses(collectively, the “Inventory), and all of the customer data.

 

**b.             Datapak’s ProprietaryRights.**  Datapak is not authorizing,selling, transferring, licensing or permitting the use of any of itsintellectual property, including but not limited to proprietary data, formulas,database structures, database format, computer applications, programming andsoftware owned, licensed or developed by Datapak.  All computer applications, programming andsoftware, either purchased, owned, licensed or developed by Datapak inconnection with any services rendered by Datapak under this Agreement shallremain exclusive property of Datapak and the Bare Escentuals shall never haveany right, entitlement or claim to said property, and Bare Escentuals disclaimsall 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 gainsaccess, in the course of or incidental to the performance of this Agreement, isof 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’scustomers and suppliers, know-how, software, future and proposed products andservices, financial information, business forecasts, sales and merchandising,and marketing plans and information. Confidential Information may be disclosed in written or other tangibleform (including on magnetic media) or by oral, visual or other means.  The terms, conditions and provisions of thisAgreement shall be deemed by the parties hereto to be 

 

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ConfidentialInformation of both parties hereto.  TheRecipient of Confidential Information shall use the Confidential Informationonly for the purposes of this Agreement or as otherwise expressly permitted bythis Agreement.  Recipient ofConfidential Information shall protect such Confidential Information fromdisclosure to others, using the same degree of care used to protect its ownconfidential or proprietary information of like importance, but in any caseusing no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder (a) toits 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 andare bound to protect the received Confidential Information from unauthorizeduse and disclosure under terms no less restrictive than those contained in thisAgreement.  Confidential Informationshall not otherwise be disclosed by Recipient to any third party without theprior written consent of the Discloser. The restrictions herein on the use and disclosure of ConfidentialInformation shall not apply to information that:  (i) was publicly known at the time of Discloser’scommunication thereof to Recipient or becomes publicly known through no faultof Recipient subsequent to the time of such communication; (ii) was inRecipient’s possession free of any obligation of confidence at the time ofDiscloser’s communication to Recipient; (iii) is developed by Recipientindependently of and without reference to any of Discloser’s ConfidentialInformation or other information that Discloser disclosed in confidence to anythird party; (iv) is rightfully obtained by Recipient from third partiesauthorized to make such disclosure without restriction; (v) is identifiedin 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 ConfidentialInformation, Recipient will promptly notify Discloser in writing prior tomaking any such disclosure and shall reasonably cooperate in any efforts ofDiscloser to seek a protective order or other appropriate remedy from theproper authority.  If Discloser is notsuccessful in precluding the requested disclosure, Recipient will furnish onlythat portion of the Confidential Information that is legally required and willexercise all reasonable efforts to obtain reliable assurances that confidentialtreatment will be accorded the Confidential Information.  All Confidential Information disclosed underthis Agreement (including information in computer software or held inelectronic storage media) shall be and remain the property of Discloser or itslicensors. All such information in any computer memory or data storageapparatus shall be erased or destroyed, and all such information in tangibleform in the possession or under the control of the Recipient shall, at thediscretion of the Recipient, either be destroyed or returned to the Discloserpromptly upon the earlier of: (i) the written request of the Discloser or (ii) terminationor expiration of this Agreement, and in any of such events and to theapplicable extent shall not thereafter be retained in any form by or throughRecipient unless otherwise expressly permitted hereunder.

 

**5.            ****INSURANCE/RISK OF LOSS.**

 

**a.             Insurance**.  Datapak shall maintain in full force andeffect policies of insurance for the full replacement cost of all Bare Escentuals’merchandise located in Datapak’s warehouses. Datapak shall likewise maintain infull force and effect policies of insurance on buildings and equipment atDatapak’s facilities, including commercial general liability insurance,property damage and personal injury insurance and fire and theft coverage withlimits (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 bya responsible insurer satisfactory to Bare Escentuals, shall include BareEscentuals as an additional insured, shall provide Bare Escentuals not lessthan thirty (30) days advance notice of cancellation or material change in thepolicy, and shall not include a policy deductible in excess of $10,000.  Upon Bare Escentuals’ request, Datapak shallprovide (i) a copy of the insurance policies required to be carried underthis Section 8.a of this Agreement, and (ii) a certificate ofinsurance from the insurer certifying that such coverage is in place.

 

**b.             Risk of Loss.**  Bare Escentuals shall be fully responsiblefor the Inventory until it is physically received at Datapak’s warehouses.  Datapak shall be responsible for theInventory once delivered to its warehouses until such time as such Inventory isdelivered by Datapak and accepted by a shipping company pursuant to an orderfor shipment.  Thereafter, BareEscentuals shall bear the risk of loss unless and until such Inventory isreturned to the custody of Datapak.

 

**6.            ****INDEMNIFICATION.**

 

**a.             Datapak Indemnity.**  Datapak shall defend, indemnify and hold BareEscentuals harmless against all claims, losses, damages, costs, and expenses,including reasonable attorneys’ fees, arising out of or related to (i) Datapak’sbreach or default under this Agreement; (ii) any personal injury, death orproperty damage, sustained by any person arising out of or resulting fromDatapak’s activities contemplated by this Agreement, (iii) the negligenceor misconduct of Datapak, or its employees, agents or contractors in theprovision of call center services.

 

**b.             Bare Escentuals Indemnity. **Bare Escentuals shalldefend, indemnify and hold Datapak harmless against all claims, losses,damages, costs, and expenses, including reasonable attorneys’ fees, arising outof or related to Bare Escentuals’ products, provided that (i) Datapak notifiesBare Escentuals in writing within thirty (30) days of Datapak’s receipt ofnotice of the claim, (ii) Bare Escentuals has sole control of the defenseand all related settlement negotiations, and (iii) Datapak provides BareEscentuals with the assistance, information and authority necessary to performthe above.

 

**7.            ****DATAPAK’S REPRESENTATIONS ANDWARRANTIES. **Datapakrepresents and warrants to Bare Escentuals that (i) it has the fullcapacity and authority and all necessary licenses, permits and consents toenter into and to provide the services under this Agreement and any otherdocuments to be entered into by it hereunder, (ii) all statements andrepresentations in this Agreement are true and accurate, (iii) it willperform its obligations under this Agreement in good faith, (iv) itsemployees, agents and or contractors are appropriately qualified to performtheir duties and responsibilities contemplated herein and will perform theirobligations with all due skill, care and diligence, including withoutlimitation all call center related activities, and (v) it will perform itsobligations under this Agreement in compliance with all applicable laws andregulations now in effect or hereinafter promulgated or enacted.

 

**8.            ****LIMITATION OF LIABILITY**.  NEITHER PARTY WILL BE HELD LIABLE FOR ANYINDIRECT, SPECULATIVE, CONSEQUENTIAL, INCIDENTAL, AND/OR SPECIAL DAMAGESINCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OFPROFITS, REGARDLESS OF WHETHER SUCH PARTY HAS ADVANCE NOTICE OF THE POSSIBILITYOF SUCH DAMAGES.

 

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**9.            ****NOTICES. **All notices and other communications required or permitted hereunderwill be in writing and will be mailed, hand delivered, sent by Federal Expressor other recognized overnight courier service, or sent by facsimiletransmission, to the parties as follows:

 

| If to Datapak:          |   | Datapak Services  Corporation

55353 Lyon  Industrial Drive

New Hudson,  Michigan 48165

Attention:Larry  W. Kinney, President

Telephone: (517)  552-1400

Facsimile: (517)  552-0400

Email:  lkinney@datapakservices.com

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|-------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| With copy to:           |   | Datapak Services  Corporation

55353 Lyon  Industrial Drive

New Hudson,  Michigan 48165

Attention:Robert  G. Lahiff, General Counsel

Telephone: (517)  552-1400

Facsimile: (517)  552-0400

Email:  rlahiff@datapakservices.com

                |
|                    |   |                                                                                                                                                                                                                                                      |
| If to Bare  Escentuals: |   | Bare  Escentuals, Inc.

71 Stevenson  Street, 16th Floor

San Francisco,  California 94105

Attention: Myles  McCormick, EVP, CFO and COO

Telephone: (415)  489-5558

Facsimile: (415)  489-5999

Email:  mmcormick@bareescentuals.com

       |
| With a copy to:         |   | Bare  Escentuals, Inc.

71 Stevenson  Street, 22nd Floor

San Francisco,  California 94105

Attention:  Deanna Chechile, VP and General Counsel

Telephone: (415)  489-5260

Facsimile: (415)  520-9795

Email: dchechile@bareescentuals.com

  |

 

Anyparty may from time to time, by written notice to the others, designate adifferent address or additional persons that will be substituted for and/oradded to the address(es) above specified. Notices by mail will be sent by United States certified or registeredmail, return receipt requested, postage prepaid, and will be deemed given andeffective upon receipt or refusal of receipt. Notices by hand delivery will be deemed given and effective upon thedelivery thereof.  Notices by overnightcourier will be deemed given and effective on the first business day followingthe delivery thereof to Federal Express or another recognized overnight courierservice.  Notices by electronic mail orfacsimile will be deemed given upon transmission (provided, in the case offacsimile transmission, a send confirmation is received and retained by thesending party).

 

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**10.         ****MISCELLANEOUS.**

 

**a.             Assignment****.**  Datapak willnot assign this Agreement, in whole or in part, directly, by operation of law,or otherwise, except with the prior written consent of Bare Escentuals.

 

**b.             Attorneys’ Fees.**  If any action will be instituted betweenDatapak and Bare Escentuals in connection with this Agreement or in connectionwith the enforcement of any indemnity under this Agreement (including appeals),the party prevailing in such action will be entitled to recover from the otherparty all of its costs of action, including actual consultants’ and attorneys’fees and attorneys’ costs.  For purposesof this Agreement, the terms “attorneys’ fees” and “attorneys’ costs” willinclude the fees and expenses of counsel to the prevailing party, which mayinclude printing, photocopying, duplicating and other expenses, air freight chargesand fees billed for law clerks, paralegals and other persons not admitted tothe bar but performing services under the supervision of an attorney.

 

**c.             Construction.**  This Agreement will not be construed morestrictly against any party merely by virtue of the fact that the same has beenprepared by such party or its counsel, it being recognized both of the partieshereto have contributed substantially and materially to the preparation of thisAgreement.  All words in this Agreementthat are expressed in the neuter gender will be deemed to include themasculine, feminine and neuter genders and any word in this Agreement that isexpressed in the singular or plural will be deemed, whenever appropriate in thecontext, to include the plural and the singular.

 

**d.             Counterparts****.**  This Agreementmay be executed in any number of counterparts, each of which will be deemed anoriginal, but all of which when taken together will constitute one and the sameinstrument.  The signature page ofany counterpart may be detached therefrom without impairing the legal effect ofthe signature(s) thereon provided such signature page is attached toany other counterpart identical thereto except having additional signature pages executedby the other party or parties to this Agreement attached thereto.

 

**e.             Governing Law/Venue.**  This Agreement will be governed in allrespects by the laws of the State of California.  The United Nations Convention on Contractsfor the International Sale of Goods shall have no application whatsoever to thisAgreement.  The parties submit to thepersonal jurisdiction of the Courts (Federal and State) in the State ofCalifornia, with respect to all matters related to or arising out of thisAgreement, including post judgment proceedings. The parties agree that the venue for all disputes, claims or litigationarising out of or related to this contract shall be exclusively in the State orFederal Courts in the City and County of San Francisco, California.

 

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**f.              Headings.**  Headings of Sections are for convenience ofreference only, and will not be construed as a part of this Agreement.

 

**g.             No Third Party Beneficiary.**  This Agreement is solely for the benefit ofthe parties hereto and, to the extent provided in this Agreement, theirrespective partners, directors, officers, employees, agents andrepresentatives, and no provision of this Agreement will be deemed to conferupon other third parties any remedy, claim, liability, reimbursement, cause ofaction or other right.

 

**h.             Partial Invalidity.**  In the event that any provision of thisAgreement will be unenforceable in whole or in part, such provision will belimited to the extent necessary to render the same valid, or will be excisedfrom this Agreement, as circumstances require, and this Agreement will beconstrued as if said provision had been incorporated in this Agreement as solimited, or as if said provision has not been included in this Agreement, asthe case may be.

 

**i.              Waiver.**  No waiver of any provision or condition ofthis Agreement by any party will be valid unless in writing signed by suchparty.  No such waiver will be taken as awaiver of any other or similar provision or of any future event, act, ordefault.

 

**j.              Relationship ofthe Parties.**  Datapak isan independent contractor and not an agent, employee, franchisee or partner ofBare Escentuals, and is acting in the ordinary course of business.  Datapak has no authority to create or assumeany obligation, express or implied, on behalf of Bare Escentuals.  This Agreement does not create or evidenceany joint venture or partnership of the parties.

 

**k.            Entire Agreement.** This Agreement, including all schedules andexhibits attached hereto and documents to be delivered pursuant hereto, willconstitute the entire agreement and understanding of the parties from theeffective date of this agreement (January 1, 2008) going forward, but onlyfor the purposes of this Agreement.  Theparties have entered into prior agreements. The most recent prior agreement between the parties had an effectivedate of January 3, 2006, with an expiration date of December 31,2007, along with continuing obligations after the December 31, 2007expiration date.  This Agreement does notin any way affect the terms, conditions, validity or enforceability of anyprior agreement nor affect the continuing obligations under any prioragreements between the parties. Each agreement shall be applied and enforcedseparately between the parties.   ThisAgreement may be amended only by a written amendment executed by both of theparties hereto.

 

**[REMAINDER OF PAGEINTENTIONALLY LEFT BLANK]**

 

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IN WITNESS WHEREOF, theparties have executed this Order Fulfillment and Administrative ServicesAgreement as of the date first set forth above:

 

| **DATAPAK  SERVICES CORPORATION**, | ** ** | **BARE  ESCENTUALS BEAUTY, INC.**, |
|------------------------------------|------------|------------------------------------|
| A Michigan  corporation:           | ** ** | A Delaware  corporation:           |
| ** **                         | ** ** | ** **                         |
| By:                                | ** ** | ** **                         | By: | ** ** |
| Name:                              | ** ** | ** **                         | Name: | ** ** |
| Title:                             | ** ** | ** **                         | Title: | ** ** |
| ** **                         | ** ** | ** **                         | ** ** |
| By:                                | ** ** | ** **                         | By: | ** ** |
| Name:                              | ** ** | ** **                         | Name: | ** ** |
| Title:                             | ** ** | ** **                         | Title: | ** ** |
|                                    |            |                                    |  |  |  |  |  |  |

 

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**SCHEDULE 1**

 

**Statement of Work**

 

**WAREHOUSING AND ORDER FULFILLMENT SERVICES**

 

Datapak shall provide to Bare Escentuals a customized order fulfillmentand administrative program in connection with the sale of Bare Escentuals’products. This shall include the following:

 

(a)                                  Establishingcustomized programs and services to meet Bare Escentuals’ storage and orderfulfillment needs related to the Bare Escentuals’ spa/professional markets andinternational distributor sales and infomercial business;

 

(b)                                 Processing orders daily viaelectronic transfer, email, fax and telephone; the orders will include amongother things, the name of the customer, the shipping address, the goods to beshipped, the freight carrier to be used for shipping and any special packinginstructions (the “Shipping Order”).

 

(c)                                  Arranging for the shipmentof the ordered merchandise on behalf of the Bare Escentuals to customers, withBare Escentuals customer invoices included for orders taken on account, andproviding avenues for invoice payment and collections with an Aged AccountsReceivable (AAR) Report;

 

(d)                                 Providing adequate warehousespace for Bare Escentuals’ inventory, including appropriate temperature andhumidity controls so as to avoid damage or mutation of the Inventory. BareEscentuals shall (i) specifically identify each such SKU that requiresparticular temperature and humidity controls, and (ii) specify thespecific temperature and humidity controls for each such SKU, and the parties willreach mutually agreeable price additions or modifications required for Datapakto implement such additional controls, which additions or modifications shallbe reflected in a written amendment to the Pricing Schedule signed by bothparties.

 

(e)                                  Providing to Bare Escentualson a daily basis via electronic transfer, email, fax and telephone, trackinginformation and confirmation of shipping of all packages sent on behalf of BareEscentuals.

 

(f)                                    Offering toBare Escentuals full access to its program at Datapak through electronic datatransfers, email or report facsimile.

 

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(g)                                 Providing to Bare Escentualson a monthly basis a complete detailed report on all project activity. Thismonthly report shall include:

 

(i)                         Inventory valuestatus;

 

(ii)                      Aging accountsreceivable status:

 

(iii)                   Item sales analysis:

 

(iv)                  Bank transaction reportreconciliation:

 

(v)                     Sales tax information.

 

(vi)                  Other reports periodicallyrequested by Bare Escentuals.

 

**CALL CENTER SERVICES**

 

I.              Datapak will provide BareEscentuals with inbound customer contact services as follows:

 

(a)                                  Answer all inquiriesreceived from Bare Escentuals customers via multiple communication methods(e.g., telephone, email, fax, voice message, web chat, etc.), including:

 

(i)            taking orders;

 

(ii)           checking the status of orders;

 

(iii)          processing credits;

 

(iv)          changing or canceling continuityshipment membership;

 

(v)           updating customer profileinformation;

 

(vi)                              addressing customers’ issueswith their online accounts at bareminerals.com (or other web sites);

 

(vii)         providing product information;

 

(viii)        answering general questions about thecompany and its retail outlets;

 

(ix)                                or providing any othercustomer service related to Bare Escentuals’ products;

 

(x)                                   provide friendly, courteouscustomer service in accordance with Bare Escentuals’ customer servicephilosophy

 

II.            Datapak will provide Bare Escentualswith outbound customer contact services as follows:

 

(a)                                  Contact Bare Escentuals’customers in order to rectify order issues such as incorrect address or declinedcredit card, etc.; and

 

(b)                                 Initiateoutbound telephone and/or email campaigns as directed by Bare Escentuals.

 

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**SCHEDULE 1**

 

**Pricing Schedule**

 

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