THESE MARKETPLACE TERMS (the “Terms”) are agreed to between Scout Exchange LLC, a Delaware limited liability company with a principal office located at 501 Boylston Street, Third Floor, Boston, MA 02116 (“Scout”), the search firm or other workforce solutions provider (the “Search Firm”) who will provide candidates for contingent permanent placement positions to hiring companies as part of the Marketplace (defined below), and the hiring company receiving such services from the Search Firm (the “Company”)(collectively the “Parties”).

WHEREAS, Scout is in the business of providing a hosted software platform (the “Scout System”) to engage with and manage search firms providing candidates for hiring companies’ contingent permanent placement hires; and

WHEREAS, Search Firm desires access to and use of the Scout System and to provide Search Services (defined below) to Company, as described in more detail herein; and

WHEREAS, Company desires to receive the Search Services from Search Firm under the terms and conditions herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions

1.1 “Acceptance”

acceptance of a Candidate in the Scout System for consideration to fill an open permanent hire position for Company.

1.2 “Applicant Tracking System (ATS)” shall mean an applicant tracking system utilized by the Company and integrated with the Scout System.

1.3 “Candidate” shall mean an individual submitted by Search Firm through the Scout System to be considered for permanent hire by Company.

1.4 “Company Agreement” shall mean the agreement entered into between Scout and Company for Scout’s provision of administrative, management and support services related to the Scout Program.

1.5 “Marketplace” shall mean the aggregate collection of search firms that have agreed to these Terms and submit candidates to Scout hiring companies through the Scout System. Upon acceptance of these Terms and agreement to any other requirements provided by Scout, Search Firm will become enrolled in the Marketplace.

1.6 “PlacementFee”shallmeanthefeeagreedto between Company and Search Firm in the Scout System for the direct hiring by Company of a Candidate submitted by Search Firm, and usually expressed as a percentage of first year base compensation or a flat fee.

1.7 “Requisition” shall mean an open contingent permanent placement job posting by Company, including any job requirements or other specified terms.

1.8 “Scout Program” shall mean the program managed and administered by Scout through the Scout System and implemented for Company under a Company Agreement, which among other things involves the engagement and management of search firms through the Scout System.

1.9 “Search Services” shall mean those services provided by Search Firm in providing Candidates for open Requisitions that are managed through the Scout Program.

1.10 “Terms of Use” shall mean those terms and conditions agreed to with Scout by Search Firm regarding access to and use of the Scout System.

2. Scout Program

2.1 Company has chosen Scout to administer and manage the Scout Program, and Company and Scout have entered into a Company Agreement to govern the terms of Scout’s services thereunder. Under the Scout Program, Company will submit electronic Requisitions to be distributed to the Marketplace through the Scout System, which is hosted and maintained by Scout and may be integrated with Company’s ATS.

2.2 Search Firm shall become a member of the Marketplace and commence participation in the Scout Program by accepting these Terms and corresponding Terms of Use electronically through the Scout System, and providing all required documentation referenced in these Terms or required by Scout in writing.

2.3 Company shall require search firms to participate in the Scout Program in order to fill Requisitions from Company for jobs that are posted in the Scout System, and Search Firm shall be required to provide any contingent permanent placement services to Company through the Scout System if the particular job is posted in the Scout System.

2.4 In the event Search Firm has an existing services agreement with Company for the provision of the same type of services to be provided under these Terms, these Terms will supersede and replace such services agreement with respect to the provision of Search Services to Company under the Scout Program.

2.5 Except as expressly permitted elsewhere in these Terms, Search Firm shall direct all communications related to Candidates, Placement Fees, contract terms, or any other inquiry to Scout and shall not have any communication directly with company related to the Scout Program unless authorized by Scout. The foregoing limitation does not prohibit communication initiated by Company or job- related communications specific to an Accepted Candidate.

2.6 Search Firm may not re-post any Company- specific Requisition information to an external job board. A Candidate application to an external job board posting will not, by itself, qualify as a valid consent to representation as required in Section 3.3 below.

3. Placement and Candidate Ownership

3.1 Search Firms will view Requisitions and submit qualified Candidates to Company through the Scout System. A “Placement” occurs and a Placement Fee is due when a Search Firm’s Candidate (i) is submitted by Search Firm for an open Requisition; (ii) is “Accepted” by Company in the Scout System; (iii) is offered and accepts a position with Company; and (iv) begins his/her first day of employment with Company within 180 days of Acceptance.

3.2 If a Candidate is employed by Company for a position other than the position for which they were submitted, and such Candidate starts their first day of employment with Company within 180 days of Acceptance, Company agrees to pay a fee equal to the Placement Fee that would have been owed if the Candidate had been hired for the position for which they were originally submitted.

3.3 Candidate Ownership Between Search Firms. If two or more search firms submit the same Candidate, the search firm whose Candidate was Accepted first shall be deemed to have made the Placement; provided that in the case of an ownership dispute, such search firm (i) can provide documentation of the Candidate’s consent to representation and (ii) engaged in substantive documented hiring activity with Company with respect to that Candidate after Acceptance. In the event of an ownership dispute where two or more search firms submit the same Candidate to different Requisitions, the hiring activity required in subsection (ii) above must be substantially related to the Candidate's ultimate hire.

3.4 Candidate Ownership Between Company and Search Firm. A Candidate shall be deemed to be sourced by Company and not the Search Firm, and no Placement Fee will be due, if all of the following criteria are satisfied: (i) the Candidate existed in Company’s database or Company otherwise had actual knowledge of the Candidate prior to that Candidate’s Acceptance in the Scout System; (ii) Search Firm did not engage in any substantive documented hiring activity with Company with respect to that Candidate after the Candidate’s Acceptance; (iii) Company has engaged in recruiting activity with that Candidate in the previous 12 months; and (iv) Company notifies Scout and provides supporting documentation of the known Candidate prior to the Candidate’s first day of employment with Company.

4. Placement Fee

4.1 Company and Search Firm must agree to a Placement Fee through the Scout System. If Company posts a Requisition as “Open to Bid,” Search Firm may designate a higher or lower Placement Fee with respect to a particular Candidate than the Placement Fee posted by Company in the Requisition. If Company Accepted a Candidate as Open to Bid and the Candidate is hired, the Placement Fee will be the Placement Fee set by the Search Firm. If Company resubmits a Requisition with a higher or lower Placement Fee than what was originally provided in the Scout System under the original submission, the Placement Fee applied will be the one in place at the time of Company’s last Acceptance of the Candidate.

4.2 The Placement Fee will be invoiced by Scout and paid by Company in U.S. Dollars unless otherwise specified by Company in the Requisition. Placement Fees are paid by Company to Scout and Scout pays the Search Firm the Placement Fee less any applicable Scout Fee in accordance with these Terms.

5. Guarantee Period. A ninety (90) day guarantee period is provided on all Placements made though the Scout System, unless a different guarantee period is selected by Company in the Scout System for the applicable Requisition (“Guarantee Period”). If Company hires a Candidate and that Candidate does not remain employed by Company for the duration of the Guarantee Period for any reason other than a job elimination, downsizing, or layoff initiated by Company, no Placement Fee will be due. Company is responsible for notifying Scout that a Candidate is no longer employed with Company, the reason for the termination, and that they wish to exercise this guarantee. Such notification should be provided as soon as possible but in any event must be received by Scout no later than 5 days after the end of the Guarantee Period. If Scout does not receive such notification, Company agrees that the Guarantee Period has been satisfied and no refund of the Placement Fee will be due regardless of the Candidate’s employment status. If such notification is received within the required notice period, any Placement Fee already paid by Company will be refunded to Company within 30 days of such notification.

6. Invoicing and Payment Terms

6.1 Scout shall be responsible for invoicing Company for all Placement Fees. As soon as possible following Candidate’s acceptance of an offer, Company shall notify Scout of the hire and Search Firm shall provide Scout timely and accurate Candidate Placement data sufficient for Scout to submit an invoice to Company. Scout will invoice Company for Placement Fees owed and any sales, use, excise or similar tax due under these Terms.

6.2 In no event may payments due for Placements be made directly to Search Firm (“Misdirected Payment”). Search Firm is expressly prohibited from directing a Company to pay Search Firm or collect any Placement Fees directly. In the 

event Search Firm receives a Misdirected Payment, Search Firm agrees not to deposit, cash or otherwise utilize the funds and to remit the full Misdirected Payment to Scout as soon as practicable. If Scout does not receive a Misdirected Payment within 15 calendar days of receipt by Search Firm, Search Firm will pay to Scout a fee of ten percent (10%) of the Misdirected Payment.

6.3 Scout shall pay Search Firm the Placement Fee, less any applicable taxes and the applicable Scout Fee as detailed below, within the later of sixty (60) days from the Candidate’s first day of employment with Company or ten (10) days from the expiration of the Guarantee Period. The standard Guarantee Period per Section 5 is 90 days.

6.4 Search Firm acknowledges and agrees that Scout has no obligation to pay Search Firm for any Placement Fee or other invoiced amount unless and until Company pays that part of the invoice issued on behalf of Search Firm.

6.5 Scout shall have the right to offset against amounts that may be due to Search Firm against amounts due Scout that have not been paid in accordance with these Terms. Invoicing and payment disputes between the Parties shall be resolved by Scout. Such disputes may be settled for less than the full Placement Fee set or agreed upon in the Scout System.

6.6 Scout will invoice for and Company shall pay to Scout any sales, use, excise, or similar tax due on payments made under these Terms. Scout will remit any such taxes received from Company to the appropriate taxing authority.

7. Scout Fee

7.1 As consideration for Scout’s administration of the Scout Program, Search Firm shall pay Scout a Scout Fee, which shall be equal to twenty-five percent (25%) of any Placement Fee (excluding taxes). Scout will retain such Scout Fee from Company payment for the Placement Fee, and Search Firm authorizes Scout to deduct the Scout Fee from payments made to Search Firm by Scout on behalf of Company.

7.2 Search Firm may submit candidates to Company without any Scout Fee being incurred only if all of the following criteria are satisfied: (i) the candidate hired was not submitted by Search Firm through the Scout System; (ii) there was not a Requisition in the Scout System for the position hired; and (iii) Search Firm had a services agreement with Company in effect prior to Search Firm’s acceptance of these Terms. In all other situations in which Company hires a candidate submitted by Search Firm, even if submitted outside the Scout System, Search Firm will owe the requisite Scout Fee.

7.3 In the event Search Firm provides contingent permanent placement services to Company outside the Scout Program in violation of these Terms, Search Firm shall be required to pay Scout the applicable 

Scout Fee on any candidate hired outside the Scout System plus a penalty of ten percent (10%). If at any point during the hiring process it is determined that a job posting should have been in the Scout System, or that a candidate submission should have been through the Scout System, a Requisition and/or Candidate should be added to the Scout System at that time, and no penalty will be incurred as long as any subsequent hire is processed through the Scout System.

8. Confidential Information

8.1 By reason of the relationship hereunder, the Parties will have access to certain information and materials concerning the other that are confidential and of substantial value, which value would be impaired if such information were disclosed to third parties (“Confidential Information” as further defined below).

8.2 Confidential Information shall include, without limitation, the features and functions of the Scout System that are not available to the general public (including screen shots of the same and future enhancements), performance and security test results related to the Scout Service, financial information provided by Search Firm, content supplied by Company including Requisitions, the commercial terms of this Agreement (but not the mere existence of this Agreement), information regarding a Candidate and any other material specifically designated as confidential.

8.3 The Parties agree that they will not, and their employees, agents and contractors will not, make use of, disseminate, post outside of the Scout System or in any way disclose any Confidential Information of the other Party to any person, firm or business, except to (i) Scout System users who need to know such information in order to make use of the Scout System and who are bound by materially as restrictive obligations as those contained herein or (ii) for any purpose the disclosing party may hereafter authorize in writing. Each Party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each Party represents that it exercises reasonable care to protect its own Confidential Information.

8.4 Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving Party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving Party, (iii) information which has been independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement.

8.5 Expiration or termination of these Terms shall not relieve any Party of its obligations regarding Confidential Information.

9. Indemnification

9.1 Search Firm will indemnify, defend and hold harmless Scout and Company, along with their parents, subsidiaries, affiliates, directors, officers, agents, employees and investors, from and against any and all claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys’ fees)(collectively “Claims”) arising from: (i) the acts or omissions of Search Firm; and (ii) the breach of these Terms or the Terms of Use by Search Firm. The above indemnification obligations will not apply to any act or omission taken at Company’s or Scout’s explicit direction.

9.2 Scout will indemnify, defend and hold harmless Search Firm, along with its parent, subsidiaries, affiliates, directors, officers, agents and employees, from and against any and all Claims arising from: (i) the negligent, fraudulent or wrongful acts and omissions of Scout or its officers, employees or authorized agents; or (ii) Scout’s material breach of these Terms or the Terms of Use.

10. Limitation of Liability

10.1 NO PARTY SHALL BE LIABLE FOR OR REQUIRED TO INDEMNIFY ANOTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, REGARDLESS OF HOW CHARACTERIZED AND EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE FROM THE PERFORMANCE UNDER THESE TERMS OR IN CONNECTION WITH THESE TERMS, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

10.2 EXCEPT WITH RESPECT TO COMPANY’S PAYMENT OBLIGATIONS PURSUANT TO THESE TERMS AND THE COMPANY AGREEMENT, AND SEARCH FIRM’S CONFIDENTIALITY OBLIGATIONS OR A BREACH BY SEARCH FIRM OF THE TERMS OF USE, LIABILITY UNDER THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED (i) WITH RESPECT TO LIABILITY BETWEEN SCOUT AND SEARCH FIRM, THE FEES RETAINED BY THE LIABLE PARTY IN THE 12 MONTHS PRIOR TO THE ACT GIVING RISE TO THE LIABILITY; AND (ii) WITH RESPECT TO COMPANY LIABILITY TO SEARCH FIRM, THE FEES RETAINED BY SEARCH FIRM IN THE TWELVE (12) MONTHS PRIOR TO THE ACT GIVING RISE TO THE LIABILITY.

11. Audit

Search Firm shall maintain complete and accurate records of information and data related to its Search Services and other obligations hereunder, and to support the fees charged to Company in accordance with these Terms for a period of three (3) years after the fees or expenses were charged. Upon reasonable notice to Search Firm and no more frequently than once per calendar year for Scout and Company separately, Scout and Company representatives shall be entitled to audit Search Firm’s records with respect to the Search Services, obligations under these Terms and the Terms of Use, and the determination of charges due pursuant to these Terms. Any such audit shall be conducted during regular business hours at Search Firm’s offices. Scout’s and Company’s audit rights shall terminate one (1) year following termination of these Terms. Scout and Company shall be responsible for their own costs incurred in conducting the audit unless such audit results document that Search Firm was engaged in grossly negligent or fraudulent practices.

12. Non-Solicitation

Search Firm will not solicit for hire, hire, or assist others with the opportunity to do the same any employees of Company during the term of these Terms and for twelve (12) months thereafter. Notwithstanding the foregoing, this provision does not apply if a Company employee initiates contact with Search Firm, or to solicitation or hiring which is a result of general advertisements, career fair, job board postings or other notices for employment not directly targeted to such Company employee.

13. Warranties

a) Search Firm is responsible for complying with all stated requirements of a Requisition, verifying Candidate information, ensuring Candidate authorization to work in the United States or other applicable jurisdiction, ensuring that the Candidate has consented to submitting Candidate information to Company and Scout, and ensuring Search Firm has all necessary rights to provide the Candidate information for incorporation and use as needed for the Scout Program.

b) Company is responsible for representations made in its Requisitions, and represents and warrants that it is an Equal Opportunity Employer and will comply with all applicable laws with respect to Candidate interviewing and hiring decisions.

c) Company agrees to accept, and Search Firm will submit, all Candidates without regard to race, color, national origin, religion, sex, age, sexual orientation, gender identity, disability, covered veteran status, or any other characteristic protected by law.

d) Company and Search Firm, as applicable, will comply with all applicable laws, including but not limited to Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, and the implementing regulations for each found at 41 CFR Part 60, as well as the Department of Labor, Office of Federal Contract Compliance programs regulations at 41 CFR Part 60-1, which relate to the definition of Internet Applicants and all related record keeping requirements, as well as other relevant local regulations. In addition, Company and Staffing Firm will incorporate these Terms, as applicable, the Equal Opportunity clauses found at 41 CFR § 60-1.4(a), 60-250.5(a), 60-741.5(a), and 60- 300.5(a), and will likewise ensure that such laws and regulations are followed by subcontractors as required by 41 CFR § 60-1.4(d).

e)  Search Firm and Company will use the Scout System in compliance with all export control laws.

f)  The Parties acknowledge and agree that any acceptance of terms (including electronic acceptance through the Scout System) and conditions related to the Scout Program, including but not limited to these Marketplace Terms and the Terms of Use, shall be accepted only by a duly authorized representative of the Party who is authorized to bind that Party on all matters related to the document(s) being accepted.

14. Term and Termination

14.1 These Terms shall begin as of the date a duly authorized representative of Search Firm first accepts these Terms in the Scout System and shall continue until terminated in accordance with the terms herein. Scout and Company may terminate these Terms at any time for convenience upon at least thirty (30) days prior written notice to the other Parties. Scout further reserves the right to suspend or terminate immediately any user account or activity that is disrupting or causing harm to Scout’s computers, systems, infrastructure, Marketplace, or in violation of federal, state, or other applicable law.

14.2 Search Firm may terminate these Terms at any time for convenience upon at least thirty (30) days prior written notice to Scout and Company.

14.3 Notwithstanding any other provision of these Terms, any Party may terminate these Terms immediately in the event another Party declares or becomes bankrupt or insolvent, or dissolves or discontinues operations.

14.4 Upon termination of these Terms for any reason, all rights granted hereunder shall immediately terminate and Search Firm will cease to be able to use or have access to the Scout System. Scout may, in its sole discretion, anonymize from the Scout System any files or other information or data relating to Search Firm’s Scout account.

14.5 Survival. Each provision of these Terms reasonably intended by its terms to survive termination or expiration of these Terms shall so survive. Notwithstanding the foregoing, in the event of termination of these Terms by any Party, the provisions of these Terms will continue to apply to any Candidate that has been submitted by Search Firm through the Scout System as of the termination date. 

15. General

15.1 Publicity. Search Firm shall not identify Company in any marketing materials without Company’s prior written consent.

15.2 Term Modifications. Scout may make changes to these Marketplace Terms and/or the Terms of Use in its sole discretion for the benefit of all users of the Scout System upon thirty (30) days’ notice to Company and Search Firm. Such changes shall be deemed effective upon posting the modified Marketplace Terms or Terms of Use, as applicable, to the Scout System after expiration of the 30-day notice period. Company and Search Firm acknowledge and agree that their continued use of the Scout System after such posting shall constitute acceptance of the modified terms.

15.3 Subcontracting. Search Firm may not subcontract the Search Services or any of its obligations hereunder without the prior written consent of Scout and Company.

15.4 Assignment. Search Firm may not assign these Terms or its rights and obligations hereunder without the prior written consent of Scout and Company.

15.5 Force Majeure. The Parties shall not be considered in breach of these Terms for their failure to perform or their delay in the performance of any obligation hereunder if the performance of such obligation is prevented or delayed by fire, flood, explosion, war, insurrection, embargo, governmental actions or requirements, military authority, act of God, shortages in the marketplace or any other event beyond the reasonable control of that Party. The Parties agree to take prompt reasonable actions to minimize the effects of any such event or circumstances.

15.6 Choice of Law and Construction. These Terms will be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law rules. If Company or Search Firm access the Scout System from outside of the United States, they do so at their own risk and are responsible for compliance with the laws of that jurisdiction. The relationship of the Parties hereunder is that of independent contractors, and these Terms will not be construed to imply that any Party is the agent, employee, or joint venture of the other. In the event that any provision of these Terms is held to be unenforceable, these Terms will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties.

END OF MARKETPLACE TERMS