THESE TALENT SOLUTIONS TERMS AND CONDITIONS FOR TEMPORARY AND PERMANENT PLACEMENTS (the “Terms”) are entered into by and between NerdRabbit, LLC (“NerdRabbit”), having offices at 22 Technology Parkway South, Peachtree Corners, GA 30092, and the individual or entity purchasing Services (as defined below) from NerdRabbit (“Client”).  These Terms will govern NerdRabbit’s provision of Services to Client.

1. SERVICES. Client may purchase from NerdRabbit hereunder full-time permanent, full-time temporary contractor or hourly professional personnel recruitment services (“Services”).     As part of the Services, NerdRabbit will provide Client with access to NerdRabbit’s Nerdly Platform (the “Platform”) that will enable Client to search for and identify candidates to be hired by Client on a permanent or temporary (full-time contractor or hourly professional) basis (each a, “Candidate”).  Client shall have the right to interview and approve all proposed Candidates prior to hire or engagement.

2. NON-DISCRIMINATION. NerdRabbit and Client acknowledge and agree that each is and shall at all times remain an equal opportunity employer, making decisions without regard to or consideration of an individual’s race, color, religion, sex, age, national origin, ancestry, citizenship, marital status, physical or mental disability or other protected status

3. FEES AND EXPENSES FOR PERMANENT PLACEMENTS.

3.1    Full Time Permanent Placement Fees.  With respect to any Candidate hired by Client or its affiliate(s) during the Fee Period (as defined below) as a full-time permanent employee, Client shall pay NerdRabbit a fee which will be deemed earned upon each Candidate’s acceptance of Client’s offer, equal to 20% of such Candidate’s first year base salary plus any guaranteed bonus.  The fees set forth in this Section 3.1  are due in full, in advance, immediately upon the Candidate’s acceptance of Client’s full-time permanent offer.

3.2    Fee Period.  Client shall owe the fee set forth in Section 3.1 for all Candidates who are hired by Client or its affiliates within twelve (12) months of the later of (a) the date on which Client and such Candidate connect on the Platform or (b) the date on which Client and such Candidate have their last contact with one another on the Platform. (the “Fee Period”).

3.3.  Exceptions.  No fee will be due under Section 3.1 for any Candidate if within the 90-day period prior the date the Candidate and Client connect on the Platform, Client was already engaged in active discussions with such Candidate concerning prospective employment. 

3.4    Guarantee.  If within the first ninety (90) days of full-time permanent employment with Client a Candidate hired by Client pursuant to these Terms is terminated for cause by Client or voluntarily terminates his or her employment with Client without cause, NerdRabbit agrees to replace the Candidate at no additional fee to the Client.  If Client is past due on any amounts owed to NerdRabbit hereunder for any Candidate this replacement guaranty will not apply.    This replacement clause does not apply to any resignation or termination for reasons relating to a restructuring, layoff, reduction in force, lack of work or similar. 

3.5    Payment Terms.  

3.5.1     AWS Marketplace.  All fees due under Sections 3 or 4 of these Terms by Client may be paid by Client via the Amazon Web Services (“AWS”) marketplace.  To pay such fees, Client shall purchase credits from AWS and apply such credits to satisfy in full all amounts due hereunder.  No fractional credits are permitted.  Client acknowledges that (a) in addition to these Terms, its purchase and application of AWS credits shall be governed by AWS’ applicable terms and conditions, (b) AWS or NerdRabbit may impose restrictions on the manner and quantity of credits that may be purchased, including setting minimum purchase increments, and (c) nothing in these Terms is intended to alter or modify AWS’ terms in any way.  Client further acknowledges and agrees that credits expire upon expiration or termination of these Terms; NerdRabbit is not liable for any unused or unapplied credits; credits have no cash value; and no refunds will be issued for unused credits.  If Client fails to satisfy its payment obligations hereunder, NerdRabbit reserves the right to require payment in immediately available funds.

3.5.2     Outside of Marketplace.  If Client does not opt to purchase and pay for Services hereunder via the AWS marketplace, then (a) amounts due under Section 3.1 will be invoiced as provided in Section 3.1 and such invoices shall be payable net thirty (30) days from date of invoice, (b) amounts due under Sections 4.3 and 4.4 will be invoiced as provided therein and such invoices shall be payable net thirty (30) days from date of invoice, and (c) amounts due under Section 4.2 shall be payable in advance in immediately available US funds by credit card or other payment method accepted by NerdRabbit as indicated on the Platform.

4. FEES AND EXPENSES FOR TEMPORARY PLACEMENTS.

4.1    Temporary Placement Fees.  With respect to any temporary full-time contractor or hourly professional Candidates, if within twelve (12) months of the later of (a) the date that Client and any such Candidate connect on the Platform or (b) the date on which Client and any such Candidate have their last contact with one another on the Platform, Client engages such Candidate to provide services to Client, then Client shall pay NerdRabbit the hourly fee quoted by NerdRabbit for such Candidate for each hour worked by such Candidate.

4.2    Hourly Professional Fees.  For temporary hourly professionals, NerdRabbit offers two different billing options:

4.2.1  Pay-as-you-go.  Client shall select in advance the number of hours it wishes to purchase for a particular hourly professional Candidate.  Client shall pay for all such hours in advance.  Minimum purchase and billing increment is one (1) hour.    Pay-as-you-go hours are tied to a specific Candidate and may not be transferred to another Candidate.  Upon payment in full, the applicable hourly professional Candidate will begin work for Client and submit weekly timesheets until the allotted hours have been used in full.  All hours must be consumed within ninety (90) days of date of purchase.  Any unused hours remaining after such date will automatically expire.  Timesheets are deemed approved within twenty-four hours of submittal.  Client shall address any issues or concerns with the work of a Candidate directly with such Candidate.  Client acknowledges that NerdRabbit will not manage or oversee the work performed by any Candidate or guarantee the results or quality of any such work.  All services performed by a Candidate for Client are provided AS-IS without any warranty of any kind.

4.2.2 Annual Subscription.  Client may purchase at a reduced rate an annual subscription of hourly professional labor hours to be used toward the work of one or more temporary hourly professional Candidates.   Subscriptions are available at a minimum spend of $12,000 per year, which will be billed in equal monthly installments of $1,000 per month, payable in advance.  The minimum billing increment for a Candidate is one (1) hour.  Subscription hours may be allocated to multiple Candidates.  Timesheets will be submitted weekly as hours are worked by each Candidate.  Annual subscriptions consist of a fixed allotment of hours per month for twelve (12) months.  Each monthly allotment of hours purchased in an annual subscription must be used in that month.  Unused hours in one month will not rollover to future months.  Client may not exceed the monthly allotment of hours purchased in any given month of a subscription but may purchase additional hours on an ad hoc basis if needed.  No hours will be worked in excess of those purchased and paid for by Client.   All subscription hours must be used during the applicable monthly subscription period.  Any unused hours remaining at the end of any month during an annual subscription period or at the end of the annual subscription period will automatically expire.  Client shall address any issues or concerns with the work of a Candidate directly with such Candidate.  Client acknowledges that NerdRabbit will not manage or oversee the work performed by any Candidate or guarantee the results or quality of any such work.  All services performed by a Candidate for Client are provided AS-IS without any warranty of any kind.

4.3      Full-Time Temporary Contractor Fees.  For temporary contractors hired on a full-time basis for a definite period of time, each Candidate will submit weekly timesheets which will be deemed approved within twenty-four hours of submittal.   Client shall pay the applicable hourly fee due for all Candidate hours reflected on approved timesheets.  If Client opts to purchase and pay for such hours via the AWS marketplace, then all Candidate hours reflected on approved time sheets will be included as part of Client’s AWS bill for the applicable month and paid pursuant to the terms of Section 3.5.1 above.  Any hours that cannot be added to Client’s bill in the month during which such hours were worked will be added to the Client’s next monthly AWS bill.  If Client does not wish to purchase and pay for the hours via the AWS marketplace, then the payment terms in Section 3.5.2 will apply and Client shall pay for the hours worked upon the invoice date.  Client shall address any issues or concerns with the work of a Candidate directly with such Candidate.  Client acknowledges that NerdRabbit will not manage or oversee the work performed by any Candidate or guarantee the results or quality of any such work.  All services performed by a Candidate for Client are provided AS-IS without any warranty of any kind.

4.4      Temporary Candidate Conversion Fees.  In addition to the hourly fees set forth in Sections 4.1-4.3 above, Client will also pay NerdRabbit a fee based on the schedule below for any temporary full-time contractor or hourly professional Candidate that is hired by Client or its affiliates as a permanent employee within twelve (12) months of the later of (a) the date that Client and any such Candidate connect on the Platform or (b) the date on which Client and any such Candidate have their last contact with one another on the Platform.  Such fee will be deemed earned upon the hiring of such Candidate as a permanent employee by Client and will be based upon the following percentages of each such Candidate’s first year base salary and any guaranteed bonus:

Conversion Fee

20%

10%

0%

Hours are calculated for each Candidate individually based on the aggregate number of hours such Candidate has worked for Client hereunder.  Invoices for this fee are payable upon date of invoice.

5. LIMITED WARRANTY.

5.1.  NerdRabbit warrants that at the time of performance it will use reasonable care and skill to perform personnel recruitment services in accordance with customary industry standards.  The Platform is provided AS-IS without any warranty of any kind.  NerdRabbit does not represent or warrant that the Platform will operate uninterrupted or error free.

5.2    NerdRabbit shall not be liable for (a) Client’s failure to provide a safe worksite for candidates; (b) Client’s failure to supervise, control, or safeguard premises, processes, confidential information or systems;  (c) claims by Candidates for benefits, contributions, or penalties under any employee benefit plan, fringe benefit plan, or personnel policy sponsored and maintained by Client; (d) Client making substantial changes in the Candidate’s job duties or risks without NerdRabbit’s prior written approval; (e) the conduct of Client’s officers, employees, and agents; or (f) acts or omissions of any Candidate in the furtherance of Client’s particular business.

• NERDRABBIT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, WITH RESPECT TO THE SERVICES OR PLATFORM OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE FIRST SENTENCE OF SUBSECTION 5.1 ABOVE.

6. INTELLECTUAL PROPERTY. NerdRabbit shall own exclusively all rights, and NerdRabbit does not convey, nor does Client obtain any rights, in NerdRabbit’s confidential or proprietary information used or provided by NerdRabbit in the ordinary course of business to perform Services pursuant to these Terms, including any software, appliances, methodologies, code, templates, tools, policies, records, working papers, knowledge, data, know-how, architectures, concepts, techniques, templates, works of authorship or other intellectual property, written or otherwise, all of which shall belong exclusively to NerdRabbit.  Nothing herein shall preclude NerdRabbit from using and maintaining its proprietary interest in the ideas, know-how, methods, techniques or inventions that it brought to or developed during the course of providing the Services  Client acknowledges that there are no deliverables associated with any engagement hereunder and NerdRabbit assumes no and hereby disclaims any and all liability (a) for any deliverables or other work product created by Candidates and (b) for the results of any work performed by Candidates.  Client solely is responsible to obtain any IP assignment, confidentiality or similar agreements from any Candidate Client engages hereunder.

7. MISCELLANEOUS. These Terms set forth the entire agreement between the parties with respect to the subject matter hereof, and supersede all contracts, proposals or agreements, whether oral or in writing, and all negotiations, discussions and conversations, between the parties with respect thereto.  Except for modifications by NerdRabbit pursuant to Section 8 below, these Terms may not be altered, amended or modified or any of its provisions waived except in a written document signed by both parties.  These Terms shall be governed by the laws of the State of Georgia without regard to conflicts of law rules.  Any and all actions arising out of or relating to this Agreement shall be brought only in the courts located in the State of Georgia located in Gwinnett County or the United States District Court for the Northern District of Georgia.  The parties irrevocably submit to the jurisdiction of each such court in any such action or proceeding.    Sections that by their terms are intended to survive termination of these Terms, including Sections 3 – 11 shall so survive. In case any one or more of the provisions contained in these Terms should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.  Client will owe interest on past due amounts hereunder at the maximum interest rate allowed by law.

8. TERM AND TERMINATION. These Terms shall be binding upon Client upon the date Client accepts them electronically and shall continue for a period of twelve (12) months thereafter.  These Terms shall automatically renew for successive 12-month periods unless either party gives notice to the other of its intent not to renew no less than thirty (30) days prior to the expiration of the then current term.  NerdRabbit reserves the right to modify these Terms effective upon thirty (30) days prior notice.  These Terms may be terminated by either party on thirty (30) calendar days’ prior written notice to the other party; provided that Client’s purchase of pay-as-you-go hours under Section 4.2.1 or of a subscription under Section 4.2.2 above shall be non-cancelable.   Furthermore, either party shall have the right to terminate these Terms immediately upon written notice thereof to the other party if such other party breaches any of the terms of these Terms or fails to perform or observe any of its obligations hereunder, and such breach or failure is not reasonably cured within a period of ten (10) calendar days after the receipt by the breaching party of written notice of such breach or failure specifying the nature of the breach or failure.  Termination of these Terms shall not relieve either party of its obligations incurred prior to the effective date of termination.  Client’s obligation to pay fees and expenses due hereunder shall survive any termination of these Terms.  Without limiting the generality of the foregoing, if after termination of these Terms Client (a) hires as a permanent employee any Candidate  that Client connects with on the Platform and the date of hire falls within the Fee Period for such Candidate or (b) Client hires a temporary full-time or temporary hourly professional Candidate that Client connects with on the Platform within the time period specified in Section 4.1 or (c) Client converts a temporary full-time or temporary hourly professional Candidate that Client connects with on the Platform, then Client shall owe the fees due under Sections 3.1 and 4, as applicable, for such Candidate.

9. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, BUSINESS INTERRUPTION, LOST BUSINESS PROFITS OR LOST DATA ARISING OUT OF THESE TERMS OR ANY SERVICES OR THE PLATFORM, EVEN IF A PARTY HAS BEEN ADVISED OF OR WAS AWARE OF THE POTENTIAL FOR SUCH DAMAGES IN ADVANCE.   NERDRABBIT’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS, INCLUDING IN CONNECTION WITH ANY SERVICES OR THE PLATFORM, SHALL BE LIMITED TO THE FEES THERETOFORE PAID BY CLIENT TO NERDRABBIT UNDER THESE TERMS IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

10. NERDLY PLATFORM. During the term hereof, NerdRabbit will make available the Platform to facilitate NerdRabbit’s delivery of Services hereunder.  Client’s use of the Platform is subject to NerdRabbit’s Nerdly Platform Terms of Use and Privacy Policy, as the same may be amended from time to time.  A current copy of such Terms of Use and Privacy Policy is published on the Platform and incorporated herein by this reference.  Client acknowledges receipt of such Terms of Use and Privacy Policy and agrees to comply with the same, as the may be amended from time to time.

11. AGREEMENT ACCEPTANCE. Client agrees to be bound by these Terms by using or accessing the Platform or NerdRabbit’s Services.  Client hereby accepts and agrees to be bound by these Terms as if Client’s physical signature were appended hereto.