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Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) governs the KeldairHR’s provisioning of our software and services as well as Licensee’s use of the Purchased Services. By accepting this Agreement by (i) electronically clicking a box indicating acceptance; or (ii) executing an Order Form that references this agreement, Licensee agrees to the terms of this Agreement. If the Individual signing the Order Form is doing so on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these Terms.

DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or under common control with a party to this Agreement.

“Agreement” means this Master Subscription Agreement.

“KeldairHR Account” means Licensee’s password-restricted account by which it may access and use the Software.

“Licensee” means an individual accepting this Agreement on his or her own behalf, or such individual, accepting this Agreement on behalf of a company or other legal entity.

“Licensee Data” means any material that is entered into the KeldairHR Account by Licensee, Licensee’s employees or contractors, or any third parties acting on behalf of or at the direction of Licensee (including, for the avoidance of doubt, Licensee’s job applicants).

“Order Form” means an ordering document or online order specifying the Software or Professional Services to be provided hereunder that is entered between Licensee and KeldairHR and sets forth the term, fees and billing terms. Each Order Form refers to, and incorporates by reference, this Agreement. The parties may agree to additional Order Forms from time to time.

“Professional Services” means services provided by KeldairHR other than the Software to enable or optimize Licensee’s use of the Software, which may include without limitation data migration, implementation, ongoing support, custom development, and individualized training. All Professional Services will be provided subject to a separate SOW executed by the Parties.

“Personal Data” means information that identifies a person, such as a name or online identifier, that is uploaded into the Software by Licensee or by third parties acting on Licensee’s behalf, including job applicants.

“Purchased Services” means the Software and Professional Services provisioned to Licensee pursuant to the Agreement.

“SLA” or “Service Level Agreement” means KeldairHR’s Service Level Agreement, which is located at (web address to be provided)

“Software” means KeldairHR’s proprietary HR technology including recruiting, hiring, onboarding and employee management Sofware-as-a-Service (SaaS) products, which shall be accessed by Licensee via the internet. The Software will include any global updates made available at no additional charge to similar KeldairHR customers.

“SOW” or “Statement of Work” means a written order executed by the parties that describes the Professional Services to be provided to Licensee, along with associated fees and other relevant terms.

RESPONSIBILITIES & USE OF THE KELDAIRHR SOFTWARE & SERVICES

2.1. KeldairHR’s Responsibilities.
KeldairHR will make the Software available pursuant to this Agreement and in accordance with the KeldairHR SLA set forth at (link to be provided) which shall be incorporated into this Agreement in its entirety. KeldairHR will provide the KeldairHR Software only in accordance with applicable laws and government regulations. KeldairHR will perform any agreed to Professional Services provisioned under the Agreement in a professional and workmanlike manner consistent with industry standards. KeldairHR will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Licensee Data.

2.2 Licensee Responsibilities.
Licensee will (i) be responsible for its and its Affiliates and personnel’s compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify KeldairHR immediately of any such unauthorized access and/or use of which Licensee becomes aware, (iii) use the Software only in accordance with this Agreement and all applicable laws and government regulations, and (iv) be responsible for any hiring actions or decisions made using the Software. Licensee will not (i) make the Software available to any third party (except for any third parties acting on behalf of Licensee or at Licensee’s request, such as external hiring / recruiting agencies), (ii) sell, resell, rent or lease the Software, (iii) knowingly use the Software to store or transmit material that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (iv) knowingly use the Software to transmit malicious code, (v) attempt to gain unauthorized access on the Software or its related systems or networks, (vi) interfere with or disrupt the integrity or performance of the Software or any third-party data contained therein.; and (vii) add any content or job application details that are defamatory, obscene, abusive, harassing, violent or otherwise objectionable, be likely to deceive any person, or promote any illegal activity.

2.3 Restrictions on Use of Software.
Licensee will comply with all applicable laws, rules and regulations in connection with Licensee’s use of the Software. Licensee will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Software; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software; (iii) lend, lease, offer for sale, sell or otherwise use the Software for the benefit of third parties; (iv) circumvent or attempt to circumvent any technological protective measures put in place to prevent or restrict access to the Software, including without limitation other accounts, computer systems or networks connected to the Software; or (v) use or view the Software for the purposes of developing, directly or indirectly, a product or service competitive to the Software.

2.4 Using the Software.
Licensee has the right to access and use the Software subject to the terms of applicable Order Forms and this Agreement. Unless otherwise specified in the Order Form, Licensee’s usage of the Software is for the term as stated in the Order Form. Additional Software products, or increased usage limits of the Software, may be added during the term, prorated for the portion of the remaining term at the time of additional products or usage are added. Licensee agrees that its purchases are not contingent upon any future functionality or features, or dependent on any oral or written comments made by KeldairHR regarding future functionality.

2.5 Usage limits.
Software usage is subject to the limits set forth in the Order Form(s). If Licensee desires to exceed a contractual usage limit, KeldairHR will work with Licensee to execute an additional Order Form for additional quantities as needed.

2.6 Third-party Software and Services.
KeldairHR may make available to Licensee third-party products and services that work with the KeldairHR Software via integrations or an app marketplace. Any usage of third-party products by Licensee is governed by agreements solely between Licensee and the third-party provider. KeldairHR does not warrant, support or guarantee the continued availability of third-party products whether they are not they may be certified or since KeldairHR does not control such third-party products. KeldairHR reserves the right to cease providing such third party products or services through the Software and doing so would not entitle Licensee to any refund, credit or compensation.

PROPRIETARY RIGHTS

3.1 License to Software.
Subject to the terms and conditions of the Agreement, KeldairHR grants to Licensee a non-exclusive, non-transferable, non-sublicensable, license to access and use the licensed Software, as provided by KeldairHR, during the Term in the manner contemplated by the parties and this Agreement.

3.2 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, KeldairHR reserves all right, title and interest, including all intellectual property rights, in and to the KeldairHR Software. Licensee acknowledges that the KeldairHR Software include KeldairHR’s valuable trade secrets and improper use or disclosure may cause KeldairHR irreparable harm and therefore agrees to use the Purchased Services solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Software or a copy of the Software, but only a right of limited use. All Rights not expressly granted in this Agreement are reserved to KeldairHR.

3.3 Licensee Data.
Subject to the terms and conditions of this Agreement, Licensee grants to KeldairHR a limited, non-transferable (except pursuant to Section 10.7), license to use the Licensee Data for the purpose of providing the Purchased Services; specifically, to store, process, display, use and generally make the Licensee Data available through the Internet and the KeldairHR Account in order to provide the Purchased Services in accordance with this Agreement. Licensee acknowledges that Licensee Data will be stored and processed in the United States. Licensee represents and warrants that: (i) it either owns the Licensee Data or is otherwise permitted to grant the license set forth in this Section 3.3; (ii) the posting and use of Licensee Data on or through the Software does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Licensee Data on the Software does not result in a breach of contract between Licensee and any third party.

3.4 License to use Feedback.
Licensee grants to KeldairHR a perpetual, irrevocable, royalty-free license to use and incorporate into its Software any suggestion, recommendation, enhancement request, correction or other feedback provided by Licensee or Users relating to the operation of the Software.

3.5 Anonymized Aggregated Data.
Licensee agrees that KeldairHR may aggregate anonymized statistics about its customers’ use of the Software that are non-personally identifiable with respect to Licensee and/or any individual and use those statistics (but not the underlying data) for purposes of KeldairHR’s own marketing, sales, Software enhancement, or customer service programs. Notwithstanding the foregoing, KeldairHR shall ensure that the statistics will not constitute Personal Data and will not include any Personal Data in such efforts.

FEES AND PAYMENTS

4.1 Fees.
Licensee will pay KeldairHR all fees specified in Order Forms or SOW (collectively, the “Fees”). Licensee’s payment obligations are non-cancelable and non-refundable, except in the event of Licensee’s termination under Section 5.3. All Fees are due in advance and are based on the KeldairHR Purchased Services and not actual usage.

4.2 Payment Terms.
Licensee will provide KeldairHR with valid and updated credit card information, or with a valid purchase alternative reasonably acceptable to KeldairHR. Licensee is solely responsible for providing KeldairHR accurate and complete billing and contact information and for notifying KeldairHR of any changes to such information. If Licensee provides credit card information to KeldairHR, Licensee authorizes KeldairHR to charge such credit card for all products and services as listed in the Order Form. Such charges shall be made either annually or as otherwise stated in the Order Form.

4.3 Upgrades
Licensee can elect to upgrade their Order Form in the event additional job postings are needed. Licensee shall give KeldairHR a written notice of 7 business days to downgrade the Order Form.

4.4 Overdue Charges.
If any invoiced amount due is not received by KeldairHR, KeldairHR reserves the right to charge Licensee interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

4.5 Suspension of Service.
If any charge owing by Licensee is 30 or more days overdue, KeldairHR, may without limiting its other rights or remedies, suspend the services until such amounts are paid in full. Prior to doing
so, KeldairHR will give Licensee adequate notice that the account is overdue and an ability to bring the account current.

4.6 Payment Disputes.
KeldairHR will not exercise its rights under section 4.3 or 4.4 if Licensee is disputing applicable charges in good faith and is cooperating with KeldairHR to resolve such issues.

4.7 Taxes.
KeldairHR’s fees do not include any taxes, levies, duties or other governmental fees of any kind, including but not limited to sales tax, use tax, value added tax, (collectively “Taxes”). If KeldairHR has the legal obligation to collect or pay such Taxes, KeldairHR will separately detail and include such Taxes and Licensee shall pay that amount unless Licensee provides a valid tax exemption certificate. For clarity, KeldairHR is responsible for taxes assessable against it based on income, employees or property.

TERM AND TERMINATION

5.1 Term of Agreement.
This Agreement takes effect on the date Licensee first signs an Order Form incorporating these terms and continues until all applicable Order Forms have expired or been terminated (the “Term”). In the event Licensee attempts to cancel prior to the end of the term on the order form, the remaining balance shall be owed to KeldairHR.

5.2 Term of Subscriptions.
The initial term of each subscription to Purchased Services will be described in the applicable Order Form (the “Initial Term”). Except as otherwise described in an Order Form, subscriptions for each KeldairHR Service will automatically renew for additional periods equal in length to the expiring subscription term or one year (whichever is shorter; each, a “Renewal Term”) unless either party provides written notice of non-renewal at least 30 days before the end of the relevant subscription term. In the event Licensee desires to renew the subscription for a term which is shorter than the initial term as outlined in the order form, pricing is subject to change.

5.3 Termination.
Either party may terminate this Agreement upon (i) 30 days written notice to the other party of a material breach or default specifying such breach or default and (ii) written notice of termination, provided that the other party does not cure the material breach of default within 30 days after the breaching Party receives such notice.

5.4 Effect of Termination.
Upon expiration or termination of the Agreement for any reason, the rights, licenses and access to the Purchased Services granted to Licensee under the Agreement will immediately terminate.

5.5 Refund or Payment upon Termination.
If Licensee terminates the Agreement pursuant to Section 5.3, KeldairHR will provide Licensee with a pro-rated refund of any prepaid, unused Fees covering the period from the date of termination through the end of the Term. If the Agreement expires, or if KeldairHR terminates this Agreement pursuant to Section 5.3, any unpaid Fees will become immediately due and payable to KeldairHR. In no event will termination or expiration of the Agreement relieve Licensee of its obligation to pay any Fees payable to KeldairHR for the period prior to the effective date of termination.

5.6 Data upon Termination.
Upon expiration or termination of this Agreement for any reason, KeldairHR shall provide an export file of all Licensee Data stored in the KeldairHR Account (in a reasonably usable digital format) to Licensee if Licensee requests this within 30 days of such expiration or termination.

5.7 Surviving Provisions.
All terms and provisions of the Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.

CONFIDENTIAL INFORMATION

6.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, Licensee’s Confidential Information will include Licensee Data and KeldairHR’s Confidential Information will include the Software, Order Forms (including pricing and Fees). Confidential Information of each party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2 Protection of Confidential Information.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information and in no event less than reasonable care. The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and its legal counsel and accountants without the other Party’s prior written consent.

6.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

REPRESENTATIONS AND WARRANTIES

7.1 Representations.
Each party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter the Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of any Order Form(s) incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the Party; (d) when any Order Form incorporating this Agreement is executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (e) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each Party in connection with the Agreement.

7.2 KeldairHR Warranties.
KeldairHR warrants that during an applicable term, this Agreement and the Order Forms will accurately describe the Software and Services. KeldairHR will not materially decrease the overall security of the Services and the Software and Services will not decrease the overall functionality. KeldairHR makes no warranty or representations regarding the effectiveness of the Software in satisfying Licensee’s hiring objectives as there are many variables outside of the control of KeldairHR including but not limited to your available talent pool in a given geography, or difficulty of job requirements.

7.3 Disclaimers.
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. The Software is provided “As-Is” and as available exclusive of any warranty whatsoever. KeldairHR does not warrant the Software will be error-free or that it will work without interruptions.

INDEMNIFICATION

8.1 Indemnification by KeldairHR.
KeldairHR will indemnify, defend and hold Licensee harmless from any third party claim, action, suit or proceeding made or brought against Licensee alleging that Licensee’s use of the Software in accordance with the Agreement infringes such third party’s intellectual property rights (an “Infringement IP Claim”). In the event of an Infringement IP Claim, KeldairHR may, in its discretion and at no cost to Licensee: (i) modify the Software so that they are no longer claimed to infringe or misappropriate; (ii) procure for Licensee the right to continue use of the Software or the infringing part thereof; (iii) if neither (i) nor (ii) are commercially practicable, terminate the Agreement and refund Licensee any prepaid Fees covering the remainder of the term. KeldairHR will have no liability for an Infringement IP Claim if the actual or alleged infringement results from (i) Licensee’s breach of the Agreement, (ii) Licensee’s modification, alteration or addition made to the Software or any use thereof, including any combination of the Software with other materials not provided or authorized by KeldairHR, (iii) Licensee’s failure to use any corrections or modifications made available by KeldairHR that would not result in any material loss of functionality, or (iv) use of the Software in a manner or in connection with a product or data not contemplated by this Agreement. KeldairHR also disclaims any liability for settlements entered into by Licensee or costs incurred by Licensee in relation to an Infringement IP Claim that are not pre-approved by KeldairHR in writing.

8.2 Indemnification by Licensee.
Licensee will indemnify, defend and hold KeldairHR harmless from any claim brought against KeldairHR by a third party (i) arising out of or resulting from KeldairHR’s use of any Licensee Data, as it was provided to KeldairHR, in accordance with this Agreement; and (ii) any fines or penalties that may arise as a result of Licensee’s breach of the export restrictions set forth in Section 10.6.

8.3 Mutual Conditions of Indemnity.
Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable claim; (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) the indemnified Party will reasonably cooperate to the extent necessary for the defense of such claim.

LIMITATIONS OF LIABILITY

9.1 Limitation of Liability.
In no event shall the aggregate liability of each party together with all of its Affiliates rising out of, or related to, this Agreement exceed the total amount paid by Licensee and its Affiliates hereunder for the Software and Services giving rise to the Liability in the twelve months preceding the first incident from which the Liability arose. The foregoing limitations will apply whether an action is in tort or contract and regardless of the theory of liability, but will not limit Licensee’s and its Affiliates’ payment obligations under the Fees and Payment section within. The parties agree that the foregoing limitations represent a reasonable allocation of risk under this Agreement.

GENERAL PROVISIONS

10.1 Entire Agreement.
This Agreement, together with any applicable Order Forms or SOWs, embodies the entire understanding of the Parties and supersedes any previous or contemporaneous communications, proposals or representations, whether oral or written; and may be amended only by a writing signed by both Parties. In the event of any inconsistency among terms in documents between the parties, the order of precedence is (1) the applicable Order Form; (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision in this Agreement.

10.2 Modification and Waiver.
No waiver or modification of the Agreement will be valid unless made in writing and signed by both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

10.3 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

10.4 Relationship of Parties.
The parties are independent contractors. Nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the two parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as ll employment related taxes.

10.5 Governing Law and Jurisdiction.
The Agreement is governed by and construed under the laws of the Commonwealth of Pennsylvania without reference to conflict of laws principles. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Scranton, Pennsylvania, and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.

10.6 Export Compliance.
Licensee agrees to comply with all applicable export and re-export control laws and regulations. Specifically, Licensee covenants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from KeldairHR under the Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.

10.7 Assignment.
Neither Party may assign the Agreement or any rights or obligations hereunder, directly or indirectly, whether by operation of law or otherwise, without the other party’s prior written consent (which shall not be unreasonably withheld); provided, however, that either Party may assign the Agreement to a parent, affiliate, subsidiary, or successor to its business, if any, resulting from a merger, acquisition, or other change in control. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this section will be null and void.

10.8 Force Majeure
Neither party shall be considered in default of its obligations hereunder if performance of such obligations is prevented or delayed by acts of God or government, war, terrorism, riots, acts of civil disorder, labor disputes, or such other causes as are beyond such party’s control (except the payment of money by Employer, which shall not be excused).

Last Updated: August 23, 2019.

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