Effective August 15, 2020

JOBCASE MASTER SERVICES AGREEMENT

This Jobcase Services Agreement (this “Agreement”) is made between Jobcase, Inc., a Delaware corporation (“Jobcase”), and Client, as defined in the Service Purchase Order mutually agreed upon by the Parties. Jobcase and Client each will be referred to herein as a “Party” and together as the “Parties”.

1. JOBCASE SERVICES

1.1. General. Jobcase is a technology company which owns and operates services business that enables a client, subject to the terms of a written agreement with Jobcase, to access the Jobcase membership community on www.jobcase.com (the “Jobcase Website”), and the Jobcase Network. The “Jobcase Network” means all affiliated sites owned or operated by Jobcase and its subsidiaries and affiliates except the Jobcase Website.

1.2. Jobcase Services. Jobcase shall promote content provided by Client to Jobcase on the Jobcase Website and Jobcase Network, including but not limited to Client’s job listings (“Job Listings”), Client’s general brand content (“Brand Boosts”), and Client’s virtual or in-person hiring events (“Events”, and collectively with Job Listings and Brand Boosts, the “Jobcase Services”), as further defined in Service Purchase Orders (“SPO(s)”) mutually agreed upon by the Parties. The Job Listings will be provided to Jobcase by Client via an API feed or as otherwise mutually agreed in writing (including by way of email) by the Parties. The content for Brand Boosts and Events will be provided by Client in writing (including by way of email) or may also be provided by Client through Jobcase’s self-service online portal. By way of clarity, Jobcase will determine, in its sole and absolute discretion, whether to promote the Job Listings on the Jobcase Website and the Jobcase Network.

1.3. SPOs. Client and Jobcase shall enter into SPOs. Each SPO shall specify the Jobcase Services along with pricing details and other additional terms and conditions to which the Parties mutually agree. All SPOs are fully incorporated into and a part of this Agreement. If there is a conflict between this Agreement and any SPO, this Agreement shall govern, unless the applicable SPO includes a mutually agreed upon amendment to this Agreement stating that such amended terms shall control over this Agreement.

1.4. License to use Jobcase Services. Subject to the terms and conditions of this Agreement, Jobcase hereby grants Client the limited, non-exclusive, non transferable, non-sublicensable right to access and use the Jobcase Services for the sole purpose defined in the SPO(s).

1.5. Limitations. In addition to those otherwise set forth in this Agreement and any SPO, the following limitations and restrictions shall apply to the Jobcase Services: (a) Client shall not provide access to the Jobcase Services to any person who is not an employee or contractor of Client; and (b) Client shall not use the Jobcase Services in any manner except as expressly permitted herein. Client shall not and shall not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Jobcase Services; (ii) modify, translate or create derivative works based on any of the Jobcase Services; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Jobcase Services; (iv) use any of the Jobcase Services for the benefit of a third party except as otherwise provided in this Agreement; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Jobcase Services or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (vi) remove or obscure any proprietary notices or labels of Jobcase or its suppliers on any of the Jobcase Services; and/or (vii) provide any content, job listings or advertisements to Jobcase that contain or make reference to any materials that is that is illegal, defamatory, obscene, pornographic or any other content that Jobcase, in its sole discretion, deems inappropriate or otherwise inconsistent with the purpose and intent of the Jobcase Services.

1.6. Jobcase Appearance and Functions. The overall appearance, layout, design, and features of the Jobcase Website and the Jobcase Network are at the absolute discretion of Jobcase and are subject to change at any time without notice to Client.

2. OWNERSHIP; RESERVATION OF RIGHTS

2.1. Ownership; Reservation of Rights. Client acknowledges and agrees that, as between the Parties, Jobcase retains all rights, title and interest in and to the Jobcase Services, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Client understands and agrees that Jobcase may use and disclose, in an aggregated format, any and all usage data derived or collected from Client’s use of the Jobcase Services for Jobcase’s commercial purposes, including to operate, manage, maintain, and improve Jobcase’s products and services; provided that such aggregated data is not identified as associated with Client, Client’s campaigns, or Client’s individual users. Jobcase grants no, and reserves any and all, rights other than the rights expressly granted to Client under this Agreement with respect to the Jobcase Services. Jobcase hereby reserves any and all, and Client will acquire no, rights, title or interest in and to the Jobcase Services or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement.

2.2. Intellectual Property Ownership; License to Client Intellectual Property. Except as otherwise expressly set forth herein, each of the Parties will retain and own all right, title and interest in and to such Party’s patents; works of authorship, including marketing materials, job descriptions, documentation, and related graphic or text files (collectively, “Works”); trade secrets; and domain names, trademarks, service marks, trade dress, trade names, corporate names, and proprietary logos (collectively “Marks”) and all intellectual property supplied by such Party to the other Party in connection herewith. Neither Party will obtain or claim any right, title or interest in or to the other Party’s patents, Works, trade secrets or Marks, or the intellectual property rights therein, except the right of use as specified herein or in the applicable SPO, and the parties hereby acknowledge and agree that all such use will inure to the benefit of the respective owner. Notwithstanding anything in this Agreement or any SPO to the contrary, and subject to the terms of this Agreement, Client hereby grants Jobcase the non-exclusive, non-transferable worldwide, royalty-free right and license to post, display and use Client’s Works and Marks solely as necessary for Jobcase to perform its obligations under this Agreement.

2.3. Client Responsibilities. Client shall (a) prevent unauthorized access to or use of the Jobcase Services and immediately notify Jobcase in writing of any such unauthorized access or use, and (b) use Jobcase Services only in accordance with this Agreement.

2.4. Jobcase Responsibilities; Uptime; Support. Jobcase will use reasonable efforts consistent with prevailing industry standards to provide the Jobcase Services in a manner that minimizes errors and interruptions in accessing the Jobcase Services, as set forth in the Service Level Agreement attached hereto as Exhibit A. Jobcase will provide technical support to Client for issues and questions arising from the operation of the Jobcase Services, as set forth on Exhibit A.

3. PAYMENT TERMS

3.1. Payment Terms. Client shall pay Jobcase such fees set forth in the SPO within thirty (30) days from date of the invoice. In addition, if any past due payment has not been received by Jobcase within thirty (30) days from the time such payment is due, Jobcase may, in its sole and absolute discretion, suspend and/or terminate access to the Jobcase Services until such payment is made. If Jobcase does not receive payment from Client within thirty (30) days of any payment date, then Jobcase has the right to charge a late fee of 1% of the outstanding amount each month that Jobcase does not receive payment.

3.2. Net of Taxes. All amounts payable by Client to Jobcase hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Client will be solely responsible for payment of any Taxes, except for those taxes based on the income of Jobcase. Client will not withhold any Taxes from any amounts due Jobcase.

4. TERM, TERMINATION

4.1. Term. This Agreement will commence on the Effective Date of the initial SPO signed between the Parties and apply to all SPOs effective between the Parties. The term of each SPO will commence on that SPO’s effective date and will continue as set forth therein. Except as otherwise expressly stated herein, upon any expiration of the this Agreement, all obligations of Jobcase to provide the Services will cease, and Client will (i) cease the use of the Jobcase Services; and (ii) return or destroy all other copies or other embodiments of Jobcase’s Confidential Information (as defined below).

4.2. Survival. Sections 2.1, 2.2, 3, 4, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination of this Agreement.

5. CONFIDENTIALITY; DATA COLLECTION

5.1. Definition. As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary to the other Party (the “Receiving Party”); Jobcase’s Confidential Information includes, without limitation, the Jobcase Services and the terms of this Agreement and any SPO. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party or becomes known (independently of disclosure by the Disclosing Party) directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (b) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party, or (c) was obtained from a third person that is not known by Receiving Party to be subject to any legal, contractual or fiduciary prohibition or obligation against disclosure, or (d) is independently developed by the Receiving Party without violating any of its obligations under this Agreement. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party. Each Party will use due care and reasonable measures to protect the confidentiality of the other Party’s Confidential Information. Notwithstanding any other provision of this Agreement, either Party may disclose the other Party’s Confidential Information, in whole or in part (a) to its employees, consultants, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), who have a need to know such Confidential Information and who are informed of, and agree to abide by, Receiving Party’s confidentiality obligations under the terms of this Agreement; and (b) as required by law (in which case each party will provide the other with prior written notification thereof, and will provide such Party with a reasonable opportunity to contest such disclosure). In the event of any actual or threatened breach of the provisions of this Section, the non-breaching Party shall be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify by a written statement under oath the return or destruction of all such Confidential Information and embodiments thereof.

5.2. Consumer Data. Jobcase hereby authorizes Client to collect the IP address of any consumer who clicks on Client’s Job Listings placed on the Jobcase Website and the Jobcase Network (“Jobcase Consumer Data”). Client may use the Jobcase Consumer Data for the sole purpose of verifying the authenticity of such click to ensure the accuracy of any fees or payments charged by Jobcase, and shall not collect, retain, use, process, aggregate, combine, analyze, share, make available, or disclose Jobcase Consumer Data for any other purpose. On a quarterly basis, Client shall delete or destroy all copies of Jobcase Consumer Data as soon as such information is no longer necessary for the purpose of verifying the accuracy of Jobcase charges related to a particular individual. Client may not use any means, whether automated or manual, to collect or obtain any other information via the Jobcase Website and the Jobcase Network that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Client shall implement and maintain physical, technical, and administrative safeguards to protect Jobcase Consumer Data from any unauthorized access, acquisition, use, or destruction.

6. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

6.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a Party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties; and (d) such Party will comply with all applicable federal, state, and local laws, rules, and regulations and with any applicable privacy policy. Client represents, warrants and covenants to Jobcase that: (a) Client owns or controls sufficient right, title and interest in and to its Job Listings and all other information or content transmitted to Jobcase, including through the Jobcase Services, so that the distribution of same, directly and/or indirectly, throughout the Jobcase Website and the Jobcase Network does not and will not infringe or conflict with the rights of any third party; and (b) Job Listings and all other information or content transmitted to Jobcase will not contain false or deceptive advertising, any virus, Trojan Horse, worm, or other malicious code, or content, or links to content, that is illegal, defamatory, obscene, or pornographic.

6.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE JOBCASE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, AND JOBCASE DISCLAIMS ANY AND ALL WARRANTIES THERETO, INCLUDING WITHOUT LIMITATION WARRANTIES REGARDING THE JOBCASE SERVICES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

7. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER IN CONTRACT, TORT, STRICT LIABILITY OR CAUSE OF ACTIONS OF ANY NATURE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR RELIANCE, LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF USE OR REVENUES, WHETHER OR NOT EITHER PARTY WAS ADVISED, SHOULD HAVE KNOWN OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF SUCH PARTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES TOTAL LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE SUM TOTAL OF THE FEES PAID BY CLIENT TO JOBCASE UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO THIRD PARTY CLAIMS RESULTING FROM CLIENT’S USE OF THE JOBCASE SERVICES OTHER THAN EXPRESSLY AS PERMITTED BY SECTION 1 OR A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS, WARRANTY OBLIGATIONS AND/OR INDEMNIFICATION OBLIGATIONS OF AS SET FORTH IN THIS AGREEMENT

8. INDEMNIFICATION

8.1. Indemnity. Each Party (“Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (the “Indemnified Party”) and its directors, officers, employees, agents, affiliates, successors, and assigns (collectively, the “Indemnified Parties”), from and against any claims, actions, or demands and the resulting losses, liabilities, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) arising from or in connection with any breach or misrepresentation by the Indemnifying Party of its representations, warranties, or covenants set forth in this Agreement.

8.2. Notice of Claims. The indemnification obligations set forth in this Section are contingent on (a) prompt written notice by the Indemnified Party to the Indemnifying Party of any such claim, action or demand, provided, that any failure or delay in providing such notice shall not relieve the Indemnifying Party of its obligations, except to the extent that the failure or delay actually and materially prejudices the Indemnifying Party’s defense of such claim), (b) sole control of the defense and settlement thereof by the Indemnifying Party, and (c) reasonable cooperation of Indemnified Party, at the Indemnifying Party’s expense, to facilitate such defense or settlement; provided, however, that the Indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the Indemnified Party unless such judgment, compromise or settlement (x) provides for the payment by Indemnified Party of money as sole relief for the claimant, (y) results in the full and general release of the Indemnified Party from all liabilities arising or relating to, or in connection with, the claim; and (z) involves no finding or admission of any violation of law, regulation, or the rights of any person and no effect on any other claims that may be made against the Indemnified Party.

9. GENERAL

9.1. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. All waivers and modifications must be in a writing signed by both parties.

9.2. Assignment. Neither Party may assign its rights or obligations under this Agreement absent the prior written consent of the other Party, except to any of its affiliates (provided that the assigning Party shall be responsible for the actions of such affiliates) or in the context of a merger, an acquisition, a change of control, or a sale or other transaction involving all or substantially all of the assets of the Party seeking to assign. Any permitted assignment shall be binding on the successors of the assigning Party.

9.3. Joint Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.

9.4. Notices. All notices under this Agreement will be in writing and sent to the recipient’s address set forth in the most recent SPO and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.5. Publicity. Notwithstanding anything herein to the contrary, Jobcase may mention Client and the relationship between Jobcase and Client in Jobcase’s marketing collateral, websites, and other promotional and marketing materials, and, unless Jobcase notifies Client otherwise, Client may mention Jobcase and the relationship between Jobcase and Client in Client’s marketing collateral, websites, and other promotional and marketing materials to identify the Jobcase Services and Client’s relationship with Jobcase.

9.6. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations (except for payment obligations) hereunder for any cause beyond the reasonable control of such Party and which such Party is unable to overcome by the exercise of reasonable diligence, including without limitation, an act of God, an act of war or terrorism, a riot, epidemic, fire, flood or other disaster, an act of government, a power outage, a telecommunications failure, or an interruption or failure of the Internet.

9.7. Governing Law and Venue. This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts and waives any jurisdictional, venue, or inconvenient forum objections to such courts.

EXHIBIT A
SERVICE LEVEL AGREEMENT

1. AVAILABILITY

Availability Objective: Jobcase will provide 99.5% Availability (as defined below) for the Jobcase Website (through which the Jobcase Services is accessible) within Jobcase’s Immediate Control (as defined below). For purposes hereof, “Availability” or “Available” means the Jobcase Website is available for access and use through Jobcase’s Internet connection.

Immediate Control” includes Jobcase’s network services within the Jobcase data center which extends to, includes and terminates at the Internet Service Provider (“ISP”) circuit termination point on the router in Jobcase 's data center (i.e., public Internet connectivity).

Specifically excluded from the definition of “Immediate Control” are the following:

  1. Equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Client and Client’s network services which allow the Client to access the Jobcase Services. These components are controlled by the Client and their performance or failure to perform can impair or disrupt Client’s connections to the Internet and the transmission of data.
  2. Equipment, data, advertisements, materials, software, hardware, services and/or facilities provided by third party vendors or service providers of Client.
  3. Acts or omissions of Clients, its employees, contractors, agents or representatives, third party vendors or service providers of Client or anyone gaining access to Jobcase’s network at the request of Client.
  4. Issues arising from bugs or other problems in the software, firmware or hardware of third parties.
  5. Delays or failures due to circumstances beyond Jobcase’s reasonable control that could not be avoided by its exercise of due care.
  6. Any outage, network unavailability or downtime outside the Jobcase data center.

Availability Calculation: Availability is based on a weekly 7 day x 24 hour calculation. The calculation will be as follows: ((a - b) / a) x 100 , where “a” is the total number of hours in a given calendar month, and “b” is the total number of hours that service is not Available in a given month. Specifically excluded from “b” in the calculation of the Availability measurement are (1) a service interruption caused by a security threat until such time as the security threat has been eliminated; (2) reasons of a force majeure event or events which are outside Jobcase’s Immediate Control as defined above; (3) use of unapproved or modified hardware or software by or on behalf of Client; (4) issues arising from misuse of the Jobcase Services by Client or its agents, Clients or third party contractors; (5) issues arising from a third party vendor outside Jobcase’s control; and/or (6) service interruption caused by Scheduled Maintenance as described below.

Scheduled Maintenance: Jobcase will provide Client with at least 48 hours advance notice, unless otherwise agreed by Client, via e-mail of all scheduled maintenance activities. Unless otherwise agreed by Client in advance, Jobcase will perform scheduled maintenance within a maintenance window from Monday through Thursday between the hours of 11:00 p.m. EST to 03:00 a.m. EST.

2. SUPPORT AND PROBLEM MANAGEMENT

Client Support: Client support for the Jobcase Services can be reached through Client’s relationship manager (or another contact as may be designated from time to time) and is available from 6:00 a.m. EST to 9:00 p.m. EST Monday–Friday, excluding federal holidays, for all support requests, and 24 hours, 7 days per week for Critical Priority requests. Jobcase has structured a response plan to address such requests in an efficient and timely manner, addressing the most critical issues first. Cases will be opened upon receipt of request or identification of issue, and incidents will be routed and addressed according to the following:

Severity Level Error State Description Target Response Time Target Resolution Within
1 – Critical Priority Renders the Jobcase Services inoperative, or causes to fail catastrophically 30 minutes 4 hours
2 – High Priority Affects the operation the Jobcase Services and materially degrades Client’s use thereof 2 hours 12 hours
3 – Medium Priority Affects the operation of the Jobcase Services but does not materially degrade Client’s use thereof 24 hours --
4 – Low Priority Causes only a minor impact on the operation of the Jobcase Services 48 hours --