Vangst Standard Terms and Conditions for Services

This document outlines the Vangst Standard Terms and Conditions for Services (“Vangst Terms”) that apply to the provision of any products or services by KTH Holdings, Inc. d/b/a Vangst (“Vangst”) to the entity identified in the Order Form (“Client”). An “Order Form” means any Vangst (electronic or written) order(s) submitted or signed by Client for the provision of products or services by Vangst. These Vangst Terms are incorporated into the Order Form (along with any defined terms therein) and together, form the agreement with the Client (“Agreement”). Vangst and Client may be referred to herein each as a “party” and together as the “parties.”

I. Services. Per this Agreement, Vangst agrees to provide certain services, which can include direct hire recruiting, executive recruiting, temporary employment staffing, talent concierge, consulting or other professional services, as well as utilization of its Vangst Platform (defined below) (collectively “Services”). Additional detail regarding the Services, including, as applicable, any change, addition, or reduction to the Services, Client affiliates, period for performance, additional responsibilities or duties, fee details, and payment terms (schedule or method) will be set forth online or in one or more Order Forms. Vangst shall perform the Services in a professional manner and in accordance with all applicable laws, rules, and regulations. Vangst may utilize its affiliates, subsidiaries, or contractors to provide the Services. Moreover and if specified as a Service-offering on the Order Form, Vangst shall use commercially reasonable efforts to make the Vangst Platform (defined below) accessible to Client through the Vangst-designated URL (subject to required and emergency maintenance, failure of third-party networks and communications facilities, and events of force majeure) and will also employ commercially reasonable security measures to maintain the security of the Vangst Platform, including any Client Information (defined below) stored on the Vangst Platform. Vangst shall perform Services under the terms of a current Order Form(s) until any new revisions are agreed to in writing by both parties. The Client acknowledges that an Order Form(s) may note termination of a prior Order Form(s) or previous orders in place between Vangst and Client. However, in all cases, the parties acknowledge and agree that each Order Form(s) shall be deemed to incorporate the terms and conditions of this Agreement.

II. Client Obligations.

II.1. General. Client acknowledges and agrees that successful implementation of this Agreement requires Client’s reasonable and timely cooperation, including reasonable cooperation to assist with implementation and maintenance of the Vangst Platform. Client shall fulfill any service-specific responsibilities set forth in the Order Form(s) in a timely manner, and shall comply with all applicable laws, rules, and regulations, including any professional licensing, certifications, or data utilization requirements necessary for utilization of or with respect to any individual provided through the Services. For any work to be undertaken at Client’s direction or control or at or through its business operation(s), Client is solely responsible for compliance with any legal or regulatory requirements. Client further agrees to provide to Vangst all information reasonably requested by Vangst to provide its Services. Client is solely responsible for ensuring the accuracy and completeness of any information it provides or makes available to Vangst (“Client Information”), including through an Order Form or as part of its website(s). Client represents and warrants that it has all necessary rights, permissions, or consents to provide the Client Information to Vangst for use in connection with this Agreement. As between Vangst and Client, all Client Information shall remain the property of Client, subject to the license set forth below.

II.2. Vangst Platform. With respect to the available Vangst online or mobile software solution(s) and its available functionality (“Vangst Platform”), Client may permit its designated employees to access and use the Vangst Platform (“Authorized Users”) pursuant to the Order Form between Client and Vangst and only in furtherance of Client’s own use so long as Client remains responsible for the actions or omissions of its Authorized Users through or with the Vangst Platform. Client shall treat any access credential information, e.g., login information, as the Confidential Information of Vangst. Client agrees to reasonably assist Vangst with implementation (or access) and by providing timely notice of any defects, errors, or problems encountered by any of its Authorized Users with respect to access to or use of the Vangst Platform or any unauthorized use.

II.3. Fees.

(a) General. Client shall pay all fees or expenses for the Services (“Fee(s)”) set forth in the associated Order Form(s), including the designated service fee(s), engagement fee(s) or deposit(s). Unless a different payment schedule is on the applicable Order Form(s), which may reflect a period payment period (e.g., weekly or monthly), all Fees are due (and payable) from Client within fifteen (15) days of the Vangst invoice date (“Due Date”). All Fees owed by Client are exclusive of, and Client shall pay, all applicable taxes. Vangst reserves the right (in addition to any other rights or remedies Vangst may have) to discontinue or suspend access to the Services if any Fees are overdue until such amounts are paid in full. Except as expressly set forth in this Agreement, all Fees are non-refundable, and each party shall be responsible for its respective costs and expenses incurred in connection with performance of this Agreement. Without limitation of the foregoing, Client shall be responsible for obtaining, paying for, and providing any necessary software, equipment, or communication services necessary to access remotely the Vangst Platform (as applicable). Any amounts not received by Vangst within thirty (30) days of Due Date shall be subject to a late fee of five percent (5%), and all overdue amounts shall thereafter bear interest at the rate of three percent (3.0%) per month until paid in full, or the maximum legal rate if less. If payment is not received within ninety (90) days of Due Date, balance may be sent to a third-party collections agency, at which point a forty percent (40%) legal fee will be imposed on the overdue balance. Client agrees to pay late fees, interest charges, and reasonable collections and attorneys’ fees, including costs, incurred by Vangst in collecting amounts due from Client.

(b) Replacement Opportunity. For certain Services designated as “direct hire”, “direct hiring”, or “executive recruiting” on the Order Form and if, within the number of “Replacement Calendar Days” as identified and indicated on the Order Form of starting work with Client, Client terminates a Vangst Placement’s employment for cause, or Vangst Placement voluntarily resigns, Vangst will provide a one-time replacement candidate for the same or similar role (“Limited Replacement Opportunity”). If Vangst does not receive timely payment for the Vangst Placement fee, the Limited Replacement Opportunity is null and void. The Limited Replacement Opportunity does not apply if the Vangst Placement is laid off due to downsizing, economic reasons, or lack of work. The Limited Replacement Opportunity must be applied within the number of Replacement Calendar Days indicated on the Order Form and holds no cash value. Availability of the Limited Replacement Opportunity is contingent upon Client providing prompt payment to Vangst per the Order Form and sending e-mail notification to Vangst of the Vangst Placement’s termination within five (5) days of the last day of employment. If the replacement candidate’s salary is higher than the original Vangst Placement’s salary, additional fees will be due, calculated as the additional amount of salary times the Placement Fee % indicated in the Order Form. Vangst will invoice additional fees upon replacement’s start date and invoice is due as indicated in the Order Form.

III. License Grants.

III.1. Vangst. During the term of this Agreement and as further specified online at a Vangst-designated URL or by the information set forth in the associated Order Form(s), Vangst hereby grants to Client a limited, non-exclusive right to use the Vangst Platform and the data made available by Vangst with respect to any individual employment candidate(s) (“Vangst Data”). All other rights or interests are reserved to Vangst. Except as expressly permitted in an Order Form(s), Client may therefore not use, copy, disclose, or provide access to any third party or person the Vangst Data or Vangst Platform. Moreover, access and use of the Vangst Platform by Authorized Users may be subject to additional online terms or policies. Click here (https://vangst.com/legal/terms) for the Vangst Terms of Use and here (https://vangst.com/legal/privacy) for the Vangst Privacy Policy, both of the then-current versions of which are hereby incorporated herein by this reference and made a part of this Agreement and shall be applicable against each Authorized User(s) accessing the Vangst Data or Vangst Platform. Acceptance of this Agreement shall also constitute acceptance of the then-current Terms of Use and Privacy Policy posted online and available through the links herein. Vangst may set other online access requirements (for credentials and control) for permissible access to and use of the Vangst Platform.

III.2. Client. Client hereby grants to Vangst a worldwide, royalty-free, sub-licensable, license to use any Client Information (as provided or made available by Client) as necessary for Vangst to provide the Services and further, as a part of the Vangst Platform. As a part of the foregoing grant, Client acknowledges and agrees that Vangst may onboard or perform other Services for the Client by using or copying information or content from Client's website. In connection with the foregoing grant, Client further acknowledges and agrees that Vangst may use and retain Client Information for any Vangst internal or business purpose that is lawful (including as a part of Vangst’s predictive modeling database, for internal data modeling and analysis, and for use in Vangst’s products and services) so long as Vangst does not use the Client Information in a manner that identifies Client and otherwise complies with the obligations herein for the Confidential Information of Client.

III.3. Permissible References. Vangst may refer to Client by name and to the existence of this Agreement as required by applicable law. Moreover, Client agrees that Vangst may use Client’s name to disclose that it is a user of Vangst’s products and services in Vangst’s advertising, promotion, and similar public disclosures; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Client in any way endorses Vangst’s products or services, without prior written permission of Client. Except for the foregoing, neither party shall issue any press release or other public statement regarding the subject matter hereof unless the other party has previously approved it. Moreover, except for the foregoing or as otherwise provided herein, neither party shall use, without the other party’s prior written consent, the trade names, logo, trademarks or service marks of the other party.

IV. Confidentiality. “Confidential Information” of a party shall mean any non-public or confidential information or data (in or on any media now known or hereinafter developed) disclosed or made available during the term of this Agreement by a party (each a “Disclosing Party”) to the other party (each a “Receiving Party”) relating in any way to the Disclosing Party’s employees, products, processes, pricing, procedures, programs, plans, finances, costs, or operations that is either labeled or identified as “Confidential” or “Proprietary” or is reasonably understood to be the confidential or proprietary information of the Disclosing Party. Without limitation of the foregoing, the Confidential Information shall be expressly understood to mean and include nonpublic or otherwise restricted (access) aspects of the Vangst Platform and Vangst Data. To the extent, Vangst uses, processes, or maintains Client Information that includes personally identifiable information, Vangst shall hold such personally identifiable information as the Confidential Information (defined below) of Client, and shall afford it confidential treatment in accordance with this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which the Receiving Party can prove: (a) are or become a part of the public domain through no fault of the Receiving Party; (b) are received from a third party in good faith where said party is not obligated to the Disclosing Party to keep said information confidential; (c) were in the other’s possession, as evidenced by written or other tangible evidence, prior to receipt from the Receiving Party; or (d) are disclosed in response to a requirement under law. The Receiving Party will maintain any and all Confidential information in strict confidence using no less than reasonable effort and in a manner consistent with the approach employed by the Receiving Party for its own confidential information of a similar nature in order to prevent such Confidential Information from being disclosed or made available to any unauthorized person or entity. Any right to use Confidential Information shall be limited strictly to each party’s respective rights hereunder or as necessary for each party to fulfill such party’s respective responsibilities under this Agreement.

V. Representations and Warranties; Disclaimer. Each party represents and warrants that it has the right to enter into and fully perform this Agreement and that it has not made nor will it make any contractual or other commitments which would conflict with the performance of its obligations hereunder. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VANGST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED. VANGST DOES NOT REPRESENT OR WARRANT THAT THE VANGST PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT USE OF THE SERVICES (INCLUDING UTILIZATION OF ANY INDIVIDUAL) WILL ACHIEVE OR PRODUCE ANY PARTICULAR RESULTS. IF THIS DISCLAIMER(S) OF WARRANTY IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION IN ANY MANNER, THEN ALL EXPRESS AND/OR IMPLIED WARRANTIES MANDATED BY SUCH COURT SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS.

VI. Indemnification.

VI.1. Client. Client agrees to indemnify, defend, and hold harmless Vangst and its officers, directors, agents, employees, successors (“Vangst Indemnity/Indemnities”), and assigns from and against any and all damages, losses, liabilities, subpoenas, claims, actions, and investigations (including any by state, local, federal, or national government official or agency) and the associated penalties, fines, expenses, payments, or costs, including reasonable attorneys’ fees, due to or arising out of a third party claim made against a Vangst Indemnity/Indemnities from (a) Client’s breach of this Agreement (including any Order Form(s)); (b) the Client Information and any other information reported by Client, including hours worked; (c) any interaction(s), transaction(s), or conduct, including any background check, undertaken by Client with or for any individual candidate, (d) any products or services supplied, provided, or advertised by Client; or (e) any harm or damage to any individual (assigned or provided by Vangst) while on the premises or facilities or under the control of Client.

VI.2. Vangst. Vangst agrees to indemnify, defend, and hold harmless Client and its officers, directors, agents, employees, successors (“Client Indemnity/Indemnities”), and assigns from and against any and all damages, losses, liabilities, claims, and actions and the associated penalties, fines, expenses, payments, or costs, including reasonable attorneys’ fees, due to or arising out of a third party claim made against a Client Indemnity/Indemnities from Vangst’s breach of this Agreement resulting from gross negligence or willful misconduct.

VI.3. Procedure. For any foregoing claim(s), the indemnified party will promptly notify the indemnifying party of all claims (subject to the indemnification responsibilities herein) of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all claims; and be entitled to participate at its own expense in the defense of all claims. The indemnified party agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified party (including, respectively, each Vangst Indemnity/Indemnities or Client (Indemnity/Indemnities) without its prior written consent. The foregoing consent requirement, however, shall not be required for any settlement that involves only the payment of monetary damages by the indemnifying party and in which such event does not otherwise prejudice or affect the indemnified party.

VII. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR VIOLATION(S) LAW CAUSED BY CLIENT’S BUSINESS OPERATIONS) ARISING OUT OF THIS AGREEMENT AND WHETHER OR NOT FORESEEABLE AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, VANGST’S AGGREGATE LIABILITY FOR ANY CLAIMS, DAMAGE, OR LIABILITY ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, OR VANGST’S PERFORMANCE UNDER OR FULFILLMENT OF ANY DUTIES OR OBLIGATIONS PER THIS AGREEMENT, SHALL NOT EXCEED THE AMOUNT PAYABLE TO VANGST BY CLIENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE APPLICABLE CAUSE OF ACTION AROSE. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS ON LIABILITY.

VIII. Term and Termination. This Agreement will take effect, whichever is earlier, upon use of the Services or execution of an Order Form(s) for any Services (“Effective Date”) and continue for the period of time set forth in the last to expire Order Form(s) (including any specific termination rights therein) and if no such time period is specified, then either upon the earlier of (i) deactivation of any online account with Vangst and the expiration of the then current Order Form(s) or (ii) the date that is twelve (12) months after the date of the last, mutually executed or electronically submitted Order Form(s). This Agreement may continue (and renew) if the parties mutually agree to continue performance pursuant to the terms and conditions of an Order Form(s) (or new Order Form(s)) or may be terminated (or not renewed) pursuant to the terms and conditions herein or of an Order Form(s) (or new Order Form(s)). Either party may terminate this Agreement for the material breach of any provision of this Agreement by the other party if such material breach remains uncured for thirty (30) days after receipt of written notice of such breach from the non-breaching party. In the event the Agreement is terminated, each Order Form(s) will be terminated simultaneously.

IX. Effect of Termination. Upon expiration or termination of this Agreement: (a) Client shall immediately cease using the Services; (b) Client shall pay all fees due and owing through the date of termination; (c) all licenses set forth in this Agreement will terminate; and (d) each party will destroy all confidential information (subject to any generally applied archival practices or as required by law). Except for the foregoing, upon the termination of this Agreement, each party shall return to the other party all tangible copies of the other party’s Confidential Information then in such party’s possession or control. Neither party shall incur any liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination or cancellation of this Agreement by such party, which complies with the terms of this Agreement, whether or not such party is aware of any such damage, loss, or expenses. Notwithstanding the foregoing, Sections 2.3 (for amounts due), 3.2, 3.3, 4 (for a period of two (2) years), 5 (for actions or omissions during the term), 6 (for a period of two (2) years), 7, 9, and 10 shall survive termination or expiration of this Agreement.

X. Miscellaneous.

X.1. Notices. All notices and other communications in connection with this Agreement shall be sent electronically or in writing to Client at the address provided by Client through the Vangst Platform or electronically to Vangst to the account executive contact provided on your Order Form(s), or to matt.karlin@vangst.com, or to such other addresses as may be designated by the parties in writing from time to time in accordance with this section, by email (return receipt), registered or certified mail, postage prepaid, or by express courier service, service fee prepaid. All notices shall be deemed received (a) immediately upon delivery, if hand-delivered, (b) upon transmission (return receipt confirmed), if by email, (c) five (5) business days after posting, if delivered by mail, or (d) the next business day after delivery, if delivered by express courier service. In addition to the foregoing, Vangst may provide Client with information about the Vangst Platform in electronic form, including by email to the address that Client provides or through a website that Vangst identifies. However, notice of termination may be given in writing only.

X.2. Relationship of Parties. Notwithstanding anything to the contrary herein, the parties to this Agreement are independent contractors and under no circumstances shall any of the employees of one party be deemed to be employees of the other party for any purpose.

X.3. Governing Law. This Agreement will be governed by the laws of the state of Colorado. Any dispute arising under, or pertaining to, this Agreement will be settled by binding arbitration under the rules and regulations of the American Arbitration Association existing at the time the dispute arises. The determination of the arbiters will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party in any such arbitration proceeding is entitled to recover reasonable attorneys’ fees and other costs incurred from such proceeding, in addition to any other relief granted by the arbiters. Nothing herein, however, shall preclude a party from seeking at any time emergency injunctive relief in the event of an action or omission by the other party that is likely to cause irreparable harm to it in the reasonable opinion of the party seeking the emergency remedy. In any action or proceeding to enforce, interpret, or determine the applicability or enforceability of any provision of, this Agreement, or for monetary or other relief as a result of the alleged breach of this Agreement, or otherwise arising from or under this Agreement, the prevailing party shall be entitled to recover from the other party its attorneys’ fees and costs incurred in prosecuting or defending such action or proceeding.

X.4. Non-Assignability. Client may not assign this Agreement (including, without limitation, by operation of law) without Vangst’s prior written consent, which consent shall not be unreasonably withheld or delayed; except as a part of a sale by Client or all or substantially all of Client’s assets or equity and so long as such purchaser agrees in writing to abide by the terms and conditions of this Agreement and otherwise meets any of Vangst’s requirements for financial solvency and payment ability in a manner comparable to those imposed upon Client. Any assignment in violation with this provision is void. All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.

X.5. Force Majeure. Except for obligations to make payment hereunder, neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events or conditions beyond that party’s reasonable control including, without limitation, acts of God, any governmental body or failure of software or equipment of third parties.

X.6. Severability & Waiver. If any part of this Agreement is held to be unenforceable by a court of competent jurisdiction, the unenforceable part shall be given effect to the greatest extent possible and the remainder shall remain in full force and effect. The invalidity or un-enforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. Failure to insist on strict compliance with the terms and conditions of this Agreement shall not be considered a waiver of such terms and conditions, which either party may enforce at a later time.

X.7. Entire Agreement. This Agreement constitutes the entire agreement between Client and Vangst with respect to the subject matter hereof and supersedes all prior agreements, proposals, orders, representations, claims, or communications, whether written or oral, regarding the subject matter contained herein. Modifications shall be implemented by Vangst and then accepted by Client electronically or in writing. Acceptance of an Order Form under this Agreement shall also terminate any expired agreements.

X.8. Counterparts. Acceptance of this Agreement may occur in two (2) or more counterparts, each of which shall be an original, but together shall constitute one and the same instrument.