Recruiting Subscription Agreement

Comeet Technologies, Inc. (“Comeet” or “we”) provides full life-cycle recruiting services (“Services”). This Recruiting Subscription Agreement (“Agreement”), which sets forth the terms and conditions pursuant to which Comeet shall provide such Services, is made by and between Comeet and the party accepting the terms and conditions of this Agreement (“Client” or “you”). For purposes of this Agreement, “Effective Date” means the date that Client accepts this Agreement, including by agreeing to the terms hereof that are referenced in or linked to from an agreed written order form, quote, proposal or similar document (collectively, a "Quote").

Please read this Agreement carefully. This Agreement governs your receipt of the Services. By agreeing to be bound by this Agreement you represent and warrant that you have read, understood and agreed to all terms and conditions of this Agreement on behalf of Client, and that you are authorized by Client to agree to all the terms and conditions of this Agreement on its behalf. Changes may be made to this Agreement from time to time. We will inform you thirty (30) days in advance of any updates to this Agreement, through your email address we have on file. Your continued use of the Services will be deemed acceptance of the amended or updated Agreement. If you do not agree to this Agreement or any terms hereof, please do not use and/or access the Services.

For clarity, any use of the Comeet applicant tracking platform is subject to the Comeet Terms of Service, available at https://help.comeet.com/en/articles/3110588-terms-of-service, or such other applicable terms and conditions, as may be in effect from time to time.

1. Full Life-Cycle Recruiting Services

1.1. The Services we offer are bundled full life-cycle recruiting services – a team comprised of a recruiter and sourcing associates (the “CER Team”) that deliver the full life-cycle of recruiting, including, without limitation, drafting and optimizing job posting ads, posting to job sites sourcing of active and passive candidates, search and placement recruitment services, providing benchmarked employment terms of each proposed position, process and program management, scheduling, form filling, and drafting offers and negotiating.

1.2. Subject to the terms and conditions hereof, during the Subscription Term (defined in the Quote), Comeet shall provide Client with the Services in accordance with the terms of the Subscription (defined in the Quote) set forth in the Quote.

1.3. As part of the Services, subject to the terms hereof, Client’s dedicated CER Team will source, screen and assist with interviewing potential candidates whom Client agrees in writing to consider for employment (the “Candidates”). The Candidates we present are located through our reputation, recruiting partners, and effective recruiting tools. Client agrees to keep confidential the identities and related information we present concerning Candidates and to use this information solely for the purpose of Client’s consideration of these Candidates in accordance with the terms hereof.

1.4. To the extent requested in writing by Client, certain employees and other representatives of Comeet providing the Services (“Comeet Representatives”) shall be authorized during the Term to (i) identify or otherwise present themselves as representatives of Client to Candidates (“Candidate Communications”); and (ii) use the name and logo of Client (the “Client Marks”) and any email or other credentials provided by Client (“Client Credentials”), as necessary in Comeet’s discretion in connection with any Candidate Communications. Comeet shall not make any claim to any Client Mark or apply for any trade name or trademark confusingly similar to any Client Marks, whether on behalf of Client or in its own name or interest, without the prior written consent of Client. Comeet Representatives will use the Client Marks and Client Credentials strictly in accordance with any usage guidelines provided by Client in advance and in writing.

1.5. Client undertakes to provide Comeet with the following information to enable Comeet to properly perform the Services: (i) details of the job vacancy and/or open position (including any job specifications), (ii) details of the experience, qualifications, and/or authorizations required by law or professional body which a Candidate must have to be considered for the vacancy, and (iii) such other information as Comeet may reasonably request.

1.6. Client is responsible for (a) obtaining work permits and/or such other similar permissions as may be required to enable Candidates to work under applicable laws and regulations, (b) arranging medical examinations and/or investigations into the medical history of any Candidate, (c) testing of any Candidate to ensure technical expertise and experience, (d) undertaking its own background checks, including checks into any criminal records of the Candidate, and/or (e) satisfying any medical and other requirements, qualifications or permissions required by the laws and regulations of the country in which the Candidate is engaged.

1.7. Neither party will use offensive, discriminatory, misleading and/or illegal content in the job posts it publishes.

2. Representations and Warranties

Each party represents and warrants that (i) it is duly organized under applicable law; (ii) it has the authority to entire into this Agreement and perform its obligations hereunder; and (iii) the execution and performance hereof does not conflict with any contractual obligations it has to any third party or other legal requirement.

3. Privacy

3.1. Client acknowledges that the Services are provided by Comeet on Client's behalf, and that Client shall remain fully liable and responsible for ensuring that the Services, and Client's activities arising from its use of the Services, comply with all applicable laws and regulations, including, without limitation, in connection with Client’s election or determination whether to (i) hire, contact or otherwise engage with any Candidate; and (ii) interview or otherwise consider any Candidate for employment.

3.2. Client hereby warrants, represents and, to the extent relevant, covenants, that it has (i) provided, and will provide, all appropriate notices, (ii) obtained all required informed consents and/or will have any and all ongoing legal bases, and (iii) complied, and will comply, at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), and will instruct Comeet, when Comeet is acting on behalf of Client, as to the conditions and requirements that Comeet must take into consideration at the moment of contacting and/or engaging with Candidates, for the provision of the Services in accordance with this Agreement.

3.3. To the extent that Client needs a data processing agreement, Client shall download the Comeet’s Data Processing Agreement (“DPA”) available on the Comeet’s website and return it signed to Comeet as described therein. In the event Client fails to comply with any data protection or privacy law or regulation, the GDPR and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Comeet, then: (a) to the maximum extent permitted by law, Client shall be solely and fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Comeet (including, without limitation, their employees, officers, directors, subcontractors and agents); (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, Client shall defend, hold harmless and indemnify Comeet (including, without limitation, its employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees; and (c) the limitation of Client’s liability under Section ‎12 below shall not apply in connection with clauses (a) and (b) of this Section ‎3.3.

4. Warranty/Cost

THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

Comeet does not guarantee the performance or quality of any Candidate who may be considered for employment and/or hired by Client in connection with the provision of the Services hereunder. Client is solely and exclusively responsible for determining whether to interview, hire and/or engage any Candidate, including, determining any terms and conditions thereof, in its independent business judgment and discretion. Client hereby acknowledges and agrees that Comeet shall not be liable to Client or any third party for any damages arising out of or in connection with (i) any Candidate’s employment and/or engagement with Client; (ii) any services which may or not be provided by a Candidate to Client; and/or (iii) Client’s election or determination whether to interview or otherwise consider any Candidate for employment.

Notwithstanding the foregoing, if the Candidate voluntarily leaves his or her engagement with Client or is discharged by the Client within 60 days from the date of employment or commencement of contract work (each such Candidate, a “Terminated Candidate”), and provided that Client has paid all Fees (defined below) in full in accordance with the terms of this Agreement, then Comeet shall refund any Placement Fee (as defined in the Quote) paid hereunder by Client in respect of such Terminated Candidate (the “Early Termination Warranty”). The foregoing Early Termination Warranty does not apply if: (i) the Terminated Candidate is discharged by Client following a layoff, downsizing or reorganization of the position; (ii) the Terminated Candidate is discharged following the Client’s involvement in a sale or merger; or (iii) immediately following termination of the Terminated Candidate’s engagement, the Terminated Candidate is engaged or employed by Client in a different position, capacity or role.

5. Fees

Client shall make payment to Comeet of the Subscription Fee and Placement Fee set forth in the applicable Quote (the “Fees”). Subject to the terms hereof and the applicable Quote, the Placement Fee shall be due and payable by Client in the event of the acceptance by a Candidate of an Offer from the Client for each Job Slot (as defined in the Quote) (regardless of whether there are any other sources for the recruitment of the Candidate, including without limitation a third party recruitment agency or representative, direct advertisement by the Client or any other third party referrals.

All Fees due and payable by Client to Comeet under this Agreement (i) must be paid in full without any deduction, set-off, counterclaim or withholding of any kind; and (ii) are exclusive of all applicable taxes, which will be added at the prevailing rate from time to time.

6. Terms and Procedure

Client agrees to notify Comeet as promptly as practicable when it issues an employment offer letter to a Candidate (an “Offer”) and again when the Candidate accepts an Offer. Client will provide Comeet by electronic mail copies of the Offer and the applicable Candidate’s written acceptance thereof. Comeet understands and acknowledges that a job offer by Client is contingent upon a number of additional steps in the employment process including, but not limited to, interviews, background and reference checking.

7. Agreement Non-Exclusive

Comeet agrees that this Agreement is non-exclusive and that nothing in this contract shall be interpreted as a restriction on Client’s right to procure personnel services from any other vendor or through its own auspices or on Comeet’s right to provide any products or services to any third parties.

8. Term; Termination

8.1. This Agreement shall commence on the Effective Date and shall remain in force for a period of twelve (12) months thereafter (the "Initial Term"). Following the Initial Term, this Agreement shall automatically renew for successive twelve (12) month terms (each a "Renewal Term"; collectively, together with the Initial Term, the “Term”), unless either party provides the other party with a written notice to terminate this Agreement at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as applicable.

8.2. The parties agree that either party may terminate this Agreement, in writing upon 30 days’ notice, at any time, for any reason; provided that if so terminated by Client, Comeet is entitled to any Fees payable hereunder for any Candidate submitted prior to the date of Client's notification of such termination and hired within 180 days as of the last interview held by the Client with such Candidate. Each Subscription may be terminated by the parties in accordance with the terms set forth in the applicable Quote. Notwithstanding the foregoing, this Agreement and/or any applicable Subscription may be terminated by either party for the material breach of this Agreement or any Quote by the other party, upon written notice to the party in breach, provided that the terminating party has granted a fifteen (15) day period to cure such breach which has not been cured within such period of time. Upon the termination of this Agreement the Subscription ordered under a Quote will automatically terminate, and Sections 3, 6 and 8-14 hereto shall survive any termination or expiration of this Agreement.

9. Non-Solicitation

9.1. Except as may be otherwise agreed by the parties, at any time during the Term and for twelve (12) months thereafter (the “Restricted Period”), Client shall not (without prior written consent of Comeet) directly or indirectly (including via Client’s Affiliate or Associated Person) employ, contract or otherwise engage any person who is or has been employed, contracted or otherwise engaged by Comeet in the provision of the Services or with whom Client has had contact in relation to the Agreement (including, via introduction of such person by Comeet to Client in any form) (collectively, “Restricted Persons”), other than (i) any Candidate, or (ii) as a result of a national advertising campaign open to all comers and not specifically targeted at any of the Restricted Persons of Comeet.

9.2. The parties agree that in the event of a breach by Client of its obligations under this Section 8 ‎above, Comeet will be entitled to liquidated damages in the amount of US $40,000 per each Restricted Person concerned, as full and exhaustive compensation for any and all damage to Comeet resulting from such breach. The aforesaid liquidated damages shall be Comeet’s sole remedy in connection with any such breach.

9.3. For the purposes of the Agreement, (i) “Affiliate” means with respect to a party, any other entity or person controlling, controlled by or under common control with that party; and (ii) “Associated Person” in relation to either party, means any director, employee, officer, consultant or representative of such party or its Affiliate.

10. Confidentiality

Each party (the “Receiving Party”) may receive certain confidential and proprietary information related to the technology or business (“Confidential Information”) of the other party (the “Disclosing Party”). The Receiving Party agrees to keep such information confidential during and after the termination of this Agreement and not use such Confidential Information except as necessary for the performance of its obligations or exercise of its rights hereunder. The Receiving Party may not disclose the Confidential Information of the Disclosing Party to any third party, except Receiving Party’s employees, independent contractors and service providers subject to written confidentiality and non-use obligations no less stringent than the terms hereof. Confidential Information shall not include information that (a) is generally known to the public, (b) is made available to the Receiving Party by a third party not subject to any confidentiality obligations to the Disclosing Party, or (c) is required to be disclosed by law, regulation or rule provided that the Receiving Party shall provide the Disclosing Party with prompt written notice of such obligation and shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, as required to obtain confidential treatment for such information. All data related to any Candidates hereunder shall be deemed the Confidential Information of Client. Upon any termination or expiration of this Agreement or at any time upon the written request of the other party, each party shall promptly return to the other party all copies of any Confidential Information of the other party in its possession or under its control.

11. Mutual Indemnification.

Subject to Section ‎11, each Party ("Indemnifying Party") shall: (a) defend the other Party ("Indemnitee") against any third party claim or action brought against the Indemnitee to the extent it arises directly from the Indemnifying Party's gross negligence or willful misconduct under this Agreement (a "Claim"); and (b) indemnify and hold harmless the Indemnitee for any amounts finally awarded against or imposed upon the Indemnitee (or otherwise agreed in settlement) under the Claim. The foregoing is subject to the Indemnitee: (i) promptly notifying the Indemnifying Party in writing of the Claim, (ii) ceding to the Indemnifying Party sole control of the defense and settlement of the Claim, and not admitting any liability thereunder, and (iii) reasonably cooperating with and providing information to the Indemnifying Party in connection with the Claim.

12. Limitation of Liability

12.1. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OR ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO A PARTY'S LIABILITY FOR A BREACH UNDER SECTION ‎‎‎9 (CONFIDENTIALITY), GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT.

12.2. COMEET’S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY QUOTE) SHALL NOT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY RECEIVED HEREUNDER BY COMEET FROM THE CLIENT IN RESPECT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE RELEVANT CLAIM OR CAUSE OF ACTION.

12.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.

13. Status of Parties

13.1. The relationship between Comeet and the Client is one of principal/independent contractor. Comeet shall perform and continue to perform all actions legally required to establish and maintain its status as an independent contractor. The parties expressly declare that no employment relationship exists between the Client and either of Comeet or its employees or contractors. Except as expressly permitted herein pursuant to Section 1.4, this Agreement does not authorize either party to act for the other party, or act as its agent or to make any commitments or representation on behalf of the other party.

13.2. In the event that the relationship between the Client and Comeet and/or any of Comeet’s employees or contractors shall be claimed or determined by any third party, including any governmental or judicial authority, to be an employment relationship (other than in connection with any activities pursuant to Section 1.4 hereto), Comeet shall defend, indemnify and hold the Client harmless from and against all damages, costs, losses, liabilities or expenses, including reasonable attorney's fees, incurred by the Client in connection with such claim or determination, except to the extent the foregoing was caused by the gross negligence or intentional misconduct of the Client; and provided that Client shall give Comeet: (i) prompt written notice of any indemnifiable claim hereunder; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at Comeet’s expense; and (iii) exclusive control over the defense of such indemnifiable claim and any related settlement negotiations.

14. Governing Law; Venue

This Agreement shall be governed by the laws of the State of New York, excluding any otherwise applicable conflict of laws provisions thereof. The state and federal courts in New York County, New York shall have exclusive jurisdiction and venue with respect to any disputes, actions, claims or causes of action arising hereunder. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE.

15. Miscellaneous

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement supersedes any all other agreements or understandings between the parties, whether written or oral, regarding the subject matter hereof, excluding, as applicable, the Comeet Subscription Agreement or Comeet Terms of Service, as may be in effect from time to time, which shall remain in full force and effect and are not related to this Agreement. This Agreement may not be modified or amended except in writing. A waiver of any default hereunder of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Comeet may assign its rights or obligations hereunder, and by virtue of such assignment, the assignee assumes Comeet’s stead and Comeet is irrevocably released from all performance and obligations hereunder. Client may not assign or delegate, any of its right or obligations under this Agreement without the prior written consent of Comeet. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.

Recruiting Subscription Agreement – version 1.1