Terms

Definitions:

Staffing Future = Staffing Future, LLC
You = The client that signed the Future Builder Agreement
Parties; Party = Staffing Future and You; either Staffing Future or You, as applicable

1. Agreement
Your use of Staffing Future’s Future Builder™ recruitment platform (the “Platform”) and its services (“Services” or “Project”) are governed by these Terms of Service (these “Terms”) and the mutually approved Future Builder Agreement, including its Statement(s) of Work, that you and Staffing Future sign (collectively with these Terms, the “Agreement’). By signing the Future Builder Agreement or by using the Platform or Services after the “last updated” date above, you agree to these Terms.

2. Change Orders or Delays Caused by the Client
If Client or Staffing Future requests any changes to the Project or scope of Services after the Effective Date, the Parties shall discuss the request and any resulting change in timelines, deliverables, costs, and/or other items associated with the Project. Upon mutual agreement, the Parties shall enter into a written change order to update the Statement of Work accordingly. Staffing Future shall not be obligated to perform any changes to the Services without a mutually approved written change order.

In addition, the failure of Client, its employees, subcontractors, or authorized representatives to timely provide cooperation or information needed by Staffing Future to advance the Project may also result in an increase in the amount of time required to complete the Project. Client shall indemnify and hold harmless Staffing Future hereunder from any and all reasonable additional costs and expenses resulting from Client’s unreasonable delays and/or failures to perform by Client or other persons acting on Client’s behalf with respect to the Project.

3. Reasonable Care
Staffing Future warrants that it and its subcontractors, if any, are qualified to provide the Services and will perform the Services in accordance with this Agreement, in a good and workmanlike manner, and with reasonable care and attention. In addition, to the extent Staffing Future incorporates or embeds third-party software products in the Project, then Staffing Future warrants such products will be properly licensed to Staffing Future for such use.

4. Independent Contractor
The Parties expressly intend and agree that Staffing Future shall act as an independent contractor under this Agreement. It shall perform its obligations under this Agreement using its own employees, representatives, subcontractors or agents. It shall decide on the manner and means of accomplishing those obligations and shall direct, control, and supervise its personnel. It shall comply with all payroll tax, withholding, social security, unemployment, and related employer obligations. Staffing Future shall not hold itself out as an agent of or a partner or joint venturer with Client, and Staffing Future shall have no authority to act on behalf of Client except to the extent necessary to accomplish its obligations under this Agreement.

5. Confidentiality

5.1 Proprietary Information
As used herein, the term “Proprietary Information” means any and all information of a confidential or proprietary nature of a Party, including any and all confidential information encompassed in any and all reports, investigations, research or developmental work, work in progress, plans, proposals, marketing, and sales information and data, financial projections, cost summaries, pricing formulas, software, and all concepts or ideas, materials or information related to the business, products or sales of a Party or its customers which a Party has designated “Confidential” or “Proprietary” in writing. Each Party acknowledges and agrees that any and all Proprietary Information of the other Party that it or its employees, subcontractors, agents or representatives learn during the course of the engagement, whether developed alone or in conjunction with others, shall be and remain the property of such other Party.

5.2 Covenant Not to Divulge Proprietary Information
Each Party agrees to maintain in strict confidence, and not to disclose or allow to be disclosed by its members, managers, employees, consultants, and/or agents, directly or indirectly, to any person, firm or other entity, other than to persons engaged by it to further the Project or Services, Proprietary Information of the other Party, without the prior written consent of the other Party; provided, however, that such Party shall have no obligations to the other Party with respect to the use, or disclosure to others not party to this Agreement, of such information which: (a) prior to disclosure was known to or in the possession of such party as evidenced by its competent written records; (b) is or becomes publicly known during the term of this Agreement, other than through a breach of such Party’s obligations; (c) is rightfully received from a third party, which such third party is free to disclose to others without breach of any obligation of non-disclosure; (d) is required by applicable law, regulation or bona fide legal process to be disclosed, provided, however, that Party takes all reasonable steps to restrict and maintain the confidentiality of such disclosure and provides reasonable prior written notice to the other Party of the requirement to disclose such information and the specific disclosure(s) proposed to satisfy such law(s), regulation(s) or legal process(es); or (e) is authorized to be released by way of an express written authorization by the other Party.

5.3 No Other Licenses to Proprietary Information
No rights or licenses in or to the Proprietary Information of a Party are granted to the other Party by virtue of this Agreement except to perform the Project and Services.

6. Termination

6.1 Grounds for Termination
Either party may terminate this Agreement if the other party fails to cure a material breach of this Agreement within thirty (30) days of receipt of a written notice from the non-breaching party specifying the breach and the action needed to cure such breach. Staffing Future shall be entitled to receive compensation from the Client for all Services provided hereunder through the date of termination or expiration.

In addition, either Party may terminate this Agreement immediately if the other Party: (i) files a petition under any federal or state bankruptcy or insolvency law seeking a reorganization, arrangement, composition, dissolution or similar proceeding; (ii) becomes insolvent or makes an assignment for the benefit of its creditors; (iii) seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of its affairs or for its assets; or (iv) makes a general assignment for the benefit of its creditors.

6.2 Return of Materials at Termination
Upon any termination of this Agreement for any reason, Client’s license and access to the Platform and its associated integration(s) and the Services, including any site hosting, shall cease, and Staffing Future shall promptly deliver to Client any and all materials, property, documents, data, and all other information in its possession or control belonging to Client or pertaining to Client’s Proprietary Information, whether prepared by Client or Staffing Future. Notwithstanding the foregoing, Staffing Future shall be entitled to retain one (1) copy of any such Client information in its possession at the time of termination solely for archival purposes.

6.3 Obligations Surviving Termination
The obligations of Sections 4, 5, 6.3, 7, and 8 survive the expiration or any termination of this Agreement.

7. Intellectual Property
Ownership by Client. All candidate data and content entered into the Platform by Client remain the property of Client (and Client warrants that it has the rights to use and to permit Staffing Future to use such data and content for the purposes of performing the Services hereunder without infringing or misappropriating the rights of any third party). In addition, as between Staffing Future and Client and subject to the following paragraph, the website design and deliverables created by Staffing Future in the course of the Project specifically for Client (collectively, “Materials”) shall be treated as “works made for hire” for Client and Client shall own the intellectual property rights therein. Staffing Future hereby irrevocably assigns to the Client any right, title, and interest that Staffing Future may have in the Materials and agrees to execute any documents required by the Client to register its rights and to implement the provisions herein.

Rights Retained by Staffing Future. Staffing Future’s rights in and to its proprietary software and applications (and all related intellectual property rights, training materials, written materials, and source codes) are or may be protected by certain patents, trademarks, copyrights, and trade secret protections, and numerous private agreements. Nothing herein shall be deemed to grant Client or any other party any right, title, or interest (other than the license interest in the next sentence) in or to such proprietary software and applications or to any improvement or modification made thereto during the course of any Services performed hereunder, or to any development methodology, programming methods, techniques or know-how utilized by Staffing Future or its licensors, or to prevent Staffing Future from rendering the same or similar services to others. Notwithstanding the preceding paragraph, any and all software and related documentation developed or created by Staffing Future hereunder which improves or expands Staffing Future’s Platform and/or proprietary software and applications that are issued to the Client as deliverables under this Agreement shall remain the property of Staffing Future but are licensed to Client for use in the website delivered to Client in accordance with this Agreement. As between the parties, Staffing Future shall own all such proprietary software, applications, rights, materials and source codes, as well as any related improvements, modifications, methodology, methods, techniques, and know-how.

Third-Party Software. Software code and graphic images owned by a third party are not affected by this Agreement.

Summary. After completion of the Project, and unless otherwise specified in this Agreement, ownership of intellectual property used or created in the performance of this Agreement shall be as follows:

• All Client candidate data and Client content remain the property of the Client
• Web Site concepts belong to the Client.
• Website designs used in the website created for Client under this Agreement belong to the Client.
• Website designs not used belong to Staffing Future and designs created for the Client belong to the Client.
• Graphic images provided by Staffing Future belong to the Client unless Staffing Future expressly states that it or a third party retains ownership thereof.
• Software code written by Staffing Future before the Effective Date and incorporated into Client’s website as part of the Service, including any modifications or improvements thereof and related documentation, belongs to Staffing Future.
• Staffing Future retains ownership of the Future Builder Platform and Integrations and updates and modifications thereto.

8. General Provisions

8.1 Entire Agreement
These Terms together with the Future Builder Agreement and its Statement(s) of Work, constitute the entire and exclusive agreement between the Parties concerning the subject matter hereof and supersedes any prior or contemporaneous agreements, representations, and understandings of the Parties with respect thereto.

8.2 Changes to these Terms; Amendments
From time to time Staffing Future may update these Terms with respect to all clients to accommodate changes in laws and regulations, market or industry conditions, applicable business requirements or common client requirements. Updated Terms will receive a new “Last Updated” date at the top of these Terms, No other amendment or modification of the Agreement shall be valid unless in writing and signed by the Parties hereto.

8.3 Severability
If any provision of this Agreement shall be held illegal or unenforceable, the validity, legality, or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

8.4 Waiver
The failure of any Party hereto to insist upon strict compliance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of that provision or right.

8.5 Representations and Warranties
Each party represents and warrants to the other party, that it is permitted to enter into this Agreement and perform the obligations contemplated hereby and that this Agreement and that the terms and obligations thereof are not inconsistent with any obligation it may have.

8.6 Successors and Assigns
Neither Party may assign this Agreement without the prior written consent of the other Party except in connection with the sale of all or substantially all of its assets or equity. The rights and obligations of a Party under this Agreement shall inure to the benefit of and shall be binding upon its permitted successors and assigns.

8.7 Taxes
Client shall not (a) withhold FICA (Social Security and Medicare taxes) from Staffing Future’s payments hereunder or make FICA payments on Staffing Future’s behalf, (b) withhold state or federal income or franchise taxes from Staffing Future’s payments hereunder, or (c) withhold any other city, state, or federal payroll taxes from Staffing Future’s payments hereunder or make such contributions on Staffing Future’s behalf. Staffing Future shall pay, when and as due, any and all taxes incurred as a result of Staffing Future’s compensation hereunder, including estimated taxes. Staffing Future indemnifies Client for any claims, losses, costs, fees, liabilities, damages, or injuries suffered by Client arising out of Staffing Future’s breach of this section.

8.8 Indemnification; Limit on Liability
Each party shall indemnify, defend and hold harmless the other Party from and against any and all losses, expenses, liabilities, damages, and costs, including without limitation, reasonable attorneys’ fees, that the indemnified Party incurs which arise from or are related to third party claims or demands (collectively, “Claims”) of gross negligence or willful misconduct by the indemnifying Party in its performance of this Agreement to the extent such Claims were not caused by actions or omissions of the indemnified Party. In addition, Client shall indemnify, defend and hold harmless Staffing Future from any Claims related to Client’s business to the extent such Claims were not caused by actions or omissions of Staffing Future.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, STAFFING FUTURE’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE COMPENSATION RECEIVED BY STAFFING FUTURE HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE CLAIM AND STAFFING FUTURE SHALL NOT BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF STAFFING FUTURE HAS BEEN ADVISED BY CLIENT OF THE POSSIBILITY OF SUCH DAMAGES.

8.9 Notices
All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Agreement shall be in writing, and delivery shall be deemed sufficient in all respects and to have been duly given as follows: (i) on the actual date of service if delivered personally; (ii) at the time of receipt of confirmation by the transmitting party if by facsimile transmission; (iii) at the time of receipt if given by electronic mail to the e-mail addresses set forth in this Section; provided, however, that a Party sending notice by electronic delivery shall bear the burden of authentication and of proving transmittal, receipt and time of receipt; (iv) on the third day after mailing if mailed by first class mail return receipt requested, postage prepaid and properly addressed as set forth in this Section; or (v) on the day after delivery to a nationally recognized overnight courier service during its business hours or the Express Mail service maintained by the United States Postal Service during its business hours for overnight delivery against receipt, and properly addressed as set forth in the Future Builder Agreement. Either Party may, by like notice, specify or change an address to which notices and communications shall thereafter be sent.

8.10 Force Majeure
Staffing Future will not be liable or responsible for any failure to perform, or delay in performance of, any obligations under the Agreement that is caused by events outside Staffing Future’s reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-occurrence, omission, or accident beyond Staffing Future’s reasonable control and includes in particular (without limitation) misuse, alteration, or interference by Client or any third party of servers or systems (including virus and hacker attacks, denial of service attacks, third party virus protection sites blacklisting site IP addresses or email addresses – mail IP due to SPAM activity); strikes, lock-outs or other industrial action; fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disasters; impossibility of the use of public or private telecommunications networks; and; acts, decrees, legislation, regulations or restrictions of any government. Staffing Future’s performance under the Agreement will be deemed to be suspended for the period that the Force Majeure Event continues, and the time for Staffing Future’s performance will be extended for the duration of the Force majeure Event. Staffing Future will make a commercially reasonable effort to find a solution by which Staffing Future’s obligations under the Agreement may be performed despite the Force Majeure Event.

8.11 Interpretation
In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular, or plural as the context may require.

8.12 Pre-Litigation Mediation
In the event of a dispute arising from or out of this Agreement or its interpretation, before filing a lawsuit, the Parties agree to first submit the dispute to non-binding mediation with JAMS at its Orange County, California office before a mutually acceptable mediator (or a mediator picked at random from JAMS’ list of qualified mediators if the Parties cannot agree on a mediator), with each party bearing one-half (½) of the mediator’s fees. Except as expressly set forth below, if any Party files a lawsuit without complying with the foregoing requirement, that party will waive its right to any attorneys’ fees to which such party may be entitled to in such lawsuit under this Agreement. Notwithstanding the foregoing, if a Party submits a written request to mediate a dispute to the other party and the latter fails to respond in good faith and to take reasonable steps to initiate mediation within thirty (30) days of receipt of such notice, the party requesting the mediation will then be free to file a lawsuit and there will be no waiver of any entitlement to attorneys’ fees under the preceding sentence. Notwithstanding the foregoing, the Parties will be entitled to obtain equitable relief, such as by temporary restraining order or injunction, in state court to prevent any violation of any of the applicable covenants, conditions, or provisions contained in this Agreement. Such remedies will be in addition to all other remedies available to the Parties including, but not limited to, the right to recover any and all monetary damages that may be sustained as a result of another party’s breach

8.13 Data Access Consent
By executing this Agreement, the Client hereby grants Staffing Future explicit consent to access, integrate, and utilize the Client’s pertinent data to deploy and implement the technical services as outlined in our contractual obligations. The Client acknowledges and agrees that such access and interaction with their data, particularly at the API level, is essential for Staffing Future to fulfill the terms and conditions of this Agreement satisfactorily. The Client further confirms that any data provided to Staffing Future will be done in compliance with applicable laws and regulations and that the Client holds the necessary rights to grant such access and consent. Additionally, Staffing Future will adhere to its internal data access policy and protocol when seeking client data access consent during testing or supporting the client’s technical integrations via the standard ATS User Interface. Such consent will be sought as and when necessary to help the client.

8.14 Governing Law; Venue
This Agreement shall be interpreted, construed, governed, and enforced according to the laws of the State of California, USA, without giving effect to its conflict of laws principles. Subject to Section 8.12, the Parties hereto irrevocably submit to the exclusive jurisdiction of the courts located in Orange County, California in any legal action arising from this Agreement.

Last updated August 16th, 2023