SHIFTSMART SERVICES AGREEMENT: EMPLOYERS

Last update: September 27, 2018

Please note that Shiftsmart, Inc. ("Shiftsmart") is a technology services provider that offers many different products and services. In particular, Shiftsmart has developed a software-based platform that assists authorized users in scheduling workers on an as-needed basis by, among other things, allowing such users to connect with independent contractors (each a "Contractor") for various short term assignments. The platform may also be utilized to locate workers for longer-term engagements.

The terms and conditions set forth below, together with any additional terms set forth in an order form ("Order") that references this agreement (collectively, this "Agreement"), govern your acquisition and use of the Shiftsmart's services you have requested ("Services"). By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an Order, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "Customer," "you," or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the services.

  1. DEFINITIONS

Capitalized terms are defined as set forth below or elsewhere in this Agreement.

1.1 "Shiftsmart App" means the mobile applications provided by Shiftsmart that enable customers and Contractors to access the Shiftsmart Platform for the purpose of submitting, seeking, receiving, and/or fulfilling on-demand requests for services.

1.2 "Shiftsmart Data" means all data related to the access and use of the Shiftsmart Platform hereunder, including all data related to Contractors and all data related to the provision of Services.

1.3 "Shiftsmart Notice" means a notice created or provided by Shiftsmart to one or more Contractors on the Shiftsmart Platform or otherwise (whether by phone, push notifications, SMS text message notifications, in person or otherwise), which includes a description of a Work Request (including services to be provided by the Contractor), the date and time (as applicable) by which the Work Request must be completed, and the payment rate for the Contractor who performs the Work Request (the "Contractor Payment").

1.4 "Shiftsmart Platform" means the technology platform and software that enables users (including both Contractors and Customers) of Shiftsmart's web portal and/or the Shiftsmart App to create, view, arrange, schedule, and/or submit Work Requests and Shiftsmart Notices, and request and receive other related services.

1.5 "Work Request" means a request for work by a customer wishing to engage a Contractor. Work Requests may include a deadline for accepting the request; a description of the work being requested; the criteria for completing the work; compensation to be paid for completing the work; and any authorized expenses.

  1. THE SERVICES

2.1 Grant of Access and Use. Subject to your compliance with this Agreement and payment of any applicable fees for the Services, Shiftsmart grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable right to access and use the Shiftsmart Platform (including installing and using the Shiftsmart App on your mobile devices) and any content, information and related materials made available through the Shiftsmart Platform, in order to: (i) submit Work Requests to schedule Contractors for various short term assignments; (ii) manage the work schedules of your workers up to the number of authorized workers and/or the number of authorized locations; and (iii) publish job postings to recruit, identify, and hire job seekers. All rights not expressly granted to you are reserved by Shiftsmart, its affiliates, and their respective licensors.

2.2 Work Requests. Customer may submit a Work Request via the Shiftsmart Platform or otherwise. Each such Work Request may be posted on the Shiftsmart Platform (including on the Shiftsmart App or web portal) and/or sent to Contractors as a Shiftsmart Notice. Once you have been matched with a Contractor and have agreed upon the terms of a Work Request, the Work Request will become a "Services Engagement." Shiftsmart can reject any Work Request that is not appropriate or that violates the terms of this Agreement or Shiftsmart's policies.

2.3 Direct Hires. Customer may utilize the Shiftsmart Platform to publish job openings to potential candidates. In the event you or someone acting on your behalf hires (including a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement) a job candidate identified via the Shiftsmart Platform or a Contractor that has performed a Services Engagement for you, you agree to notify Shiftsmart of such hire (each a "Direct Hire"). Any engagement where you provide compensation directly to a Contractor within twelve (12) months of the last Services Engagement performed for you by such Contractor shall be considered a Direct Hire regardless of whether the Contractor contacted you independently or in response to a public job posting. If you make a Direct Hire, you acknowledge and agree you must sign a contract directly with the job candidate. Upon request, Shiftsmart may facilitate this process by sending the contract to the job candidate, but it is your responsibility to ensure it is signed and returned before the job candidate begins. You acknowledge and agree that, unless otherwise agreed in writing by Shiftsmart, Shiftsmart has no responsibility for making any payments to the job candidate and you are solely responsible for paying the agreed-upon compensation set forth in the contract directly to such job candidate. Although job openings posted in the Shiftsmart Platform may include a job description, an estimate of the compensation, and other relevant details, the information provided by Shiftsmart does not control. Rather, the terms and conditions contained in the contract between you and the job candidate shall control.

2.4 Accounts. In order to use most aspects of the Services, you must register for and maintain an active account in the Shiftsmart Platform ("Account"). Account registration requires you to submit to Shiftsmart certain personal information, such as your name, company name, street address, email address, and phone number, as well as a valid payment method. You agree to maintain accurate, complete, and up-to-date information in your Account, including billing information. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services and the Shiftsmart Platform. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. You will immediately notify Shiftsmart of any actual or suspected breach or improper use or disclosure of your password.

2.5 Account Requirements and Conduct. You may not authorize third parties to use your Account without prior approval from Shiftsmart. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services and you may only use the Services for lawful purposes. You will not use the Services to cause nuisance, annoyance, inconvenience, or property damage, whether to Shiftsmart, a Contractor, or any other party.

2.6 Text Messaging, Network Access and Devices. By creating an Account, you agree that Shiftsmart may send you informational text (SMS) messages as part of your use of the Shiftsmart Platform, and that use of SMS may be necessary to utilize certain features of Services. You can cancel the SMS service at any time by replying "STOP" in the text message you received. It may take a few days for Shiftsmart to process your request. You are responsible for obtaining the data network access necessary to use the Services and Shiftsmart Platform. Your mobile network's data and messaging rates and fees may apply if you access or use the Shiftsmart Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible devices necessary to access and use the Services and the Shiftsmart Platform and any updates thereto. Shiftsmart does not guarantee, warrant or represent that the Services, the Shiftsmart Platform or any portion thereof will function on any particular device.

2.7 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Shiftsmart Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Shiftsmart Platform except as expressly permitted by Shiftsmart; (iii) decompile, reverse engineer or disassemble the Shiftsmart Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Shiftsmart Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Shiftsmart Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Shiftsmart Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services, the Shiftsmart Platform, or related systems or networks. In addition, you shall not, and shall not allow any other party to, access or use the Shiftsmart Platform to design or develop a competitive or substantially similar product or service.

2.8 Third Party Services and Content. The Services may be made available in connection with third party services and content that Shiftsmart does not control, including but not limited to payment processing services. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Shiftsmart has no control over and does not endorse such third party services and content and in no event shall Shiftsmart be responsible or liable for any interactions you may have with such third parties.

  1. FEES AND PAYMENT

3.1 Engagement Fees. Unless you are using a free version of the Services and Shiftsmart Platform, in consideration of Shiftsmart's provision of the Services and Shiftsmart Platform for your use and benefit hereunder, you agree to pay Shiftsmart the fees ("Fees") set forth in the Order, including: (i) for each Services Engagement ("Engagement Fee"); (ii) for each location whose workers' are scheduled utilizing the Shiftsmart Platform ("Scheduling Fee"); and (iii) for each Direct Hire you make of job seekers using the Shiftsmart Platform ("Direct Hire Fee"). The Fees, if any, will be invoiced according to the payment terms set forth in the Order.

3.2 Contractor Payments. Once a Services Engagement is completed by a Contractor, unless arrangements have been made for you to pay the Contractor directly, Shiftsmart will facilitate your payment of the applicable Contractor Payment on behalf of the Contractor, as such Contractor's limited payment collection agent. A Services Engagement shall be considered complete once the services have been performed by the applicable Contractor. After collection of the Engagement Fee for a completed Services Engagement from you, Shiftsmart will pay the Contractor Payment to the applicable Contractor. In some situations, you may have the opportunity to negotiate the Contractor Payment directly with the Contractor for services received by you from such Contractor at the time you receive such services. Shiftsmart will respond accordingly to any request from a Contractor to modify the Contractor Payment for a particular Services Engagement.

3.3 Late Cancellation Fee. In the event you cancel a Services Engagement within 24 hours before the start time of the Services Engagement, you will be required to pay the total Engagement Fee for the Services Engagement. In the event that you cancel a Services Engagement between 72 and 24 hours before the start time of the Services Engagement, you will be required to pay fifty percent (50%) of the Engagement Fee for the Services Engagement.

3.4 Taxes; General. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You and, as applicable, Contractors, are responsible for paying all Taxes associated with the Fees and purchases hereunder. If Shiftsmart has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you. The Fees paid by you are final and non-refundable, unless otherwise determined by Shiftsmart.

3.5 Gratuity. Contractor Payments are intended to fully compensate the applicable Contractor for each completed Services Engagement. Shiftsmart does not designate any portion of the Contractor Payment as a tip or gratuity to the Contractor. You are free to provide additional payment as a gratuity to any Contractor, but you are under no obligation to do so. After you have received services from a Contractor and a Services Engagement is completed, you will have the opportunity to rate your experience and leave additional feedback about the applicable Contractor.

3.6 Late Payment. In the event that there are unpaid or past due amounts for Fees associated with your Account, you must pay a finance charge of the lesser of 1.5% per month or the maximum amount permitted by law on such outstanding balances, plus all expenses of collection.

  1. IP OWNERSHIP

4.1 Ownership. The Shiftsmart Platform, Shiftsmart App, and Shiftsmart Data, including all intellectual property rights therein, are and shall remain (as between you and Shiftsmart) the property of Shiftsmart, its affiliates, or their respective licensors. Neither this Agreement nor your use of the Shiftsmart Platform, Shiftsmart App, or Shiftsmart Data conveys or grants to you any rights in or related to the Shiftsmart Platform, Shiftsmart App, or Shiftsmart Data, except for the limited license granted above. Other than as specifically permitted by Shiftsmart in connection with the Shiftsmart Platform, you are not permitted to use or reference in any manner company name, logo, products and service names, trademarks, service marks, trade dress, copyrights, or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Shiftsmart Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Shiftsmart Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name or title, for any goods or services.

4.2 Suggestions. You hereby grant to Shiftsmart a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Shiftsmart Platform, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by you related to the Services or Shiftsmart Platform.

  1. CONFIDENTIALITY

5.1 Definition of Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Shiftsmart Data, user names and passwords, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.

5.2 Protection of Confidential Information. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Shiftsmart, its internal record-keeping requirements).

5.3 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.

5.4 Information Included in Work Requests and Services Engagements. Notwithstanding the foregoing, you acknowledge and agree that some of the information provided in Work Requests and subsequent Shiftsmart Notices will be sent to Contractors (as part of Shiftsmart Notices or otherwise) who will need this information to determine if they want to perform the requested services. By submitting a Work Request, you are requesting, and expressly consenting, to have details of the Work Request and subsequent Shiftsmart Notice sent to Contractors via the Shiftsmart Platform. You agree that all information you provide to Shiftsmart will be accurate, current and truthful to the best of your knowledge.

5.5 Disclosure of Your Information. Subject to applicable law, Shiftsmart may, but shall not be required to, provide to you, a Contractor, an insurance company, and/or relevant authorities and regulatory agencies any information (including personal information and any Shiftsmart Data) about you or any Services provided hereunder if, in Shiftsmart's sole discretion: (a) there is a complaint, dispute or conflict, between you and a Contractor; (b) it is necessary to enforce the terms of this Agreement; (c) it is required by applicable law or regulatory requirements (e.g., Shiftsmart receives a subpoena for information); (d) it is necessary to (1) protect the safety, rights, property or security of Shiftsmart, the Shiftsmart Platform, or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims; (3) to detect, prevent, or otherwise address fraud, security, or technical issues; (4) to prevent or stop activity which Shiftsmart considers to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; or (e) it is required or necessary for insurance or other purposes related to your ability to use the Shiftsmart Platform. You understand that Shiftsmart may retain your personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.

  1. DISCLAIMERS

THE SERVICES AND SHIFTSMART PLATFORM (INCLUDING THE SHIFTSMART APP AND WEBSITES) ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." SHIFTSMART EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. SHIFTSMART MAKES NO WARRANTY THAT (A) THE SERVICES AND THE SHIFTSMART PLATFORM WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. SHIFTSMART DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH WORK REQUEST AND A CONTRACTOR, OR THAT THERE ARE CONTRATORS WILLING TO FULFILL THE WORK REQUEST AT THE TIME AND PLACE REQUESTED. SHIFTSMART IS SOLELY AN ON-DEMAND LEAD GENERATION SERVICE AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE CONTRACTORS PERFORMING SERVICES FOR YOU.

  1. LIMITATION OF LIABILITY

SHIFTSMART SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY'S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE. IN NO EVENT SHALL THE LIABILITY OF SHIFTSMART UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO SHIFTSMART HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

  1. RELATIONSHIPS BETWEEN SHIFTSMART, CONTRACTORS AND CUSTOMERS; INSURANCE

8.1 Contractors. You acknowledge and agree that your use of the Shiftsmart Platform to arrange and obtain services from a Contractor creates a direct business relationship between you and that Contractor, and your interactions and dealings with such Contractor are solely between you and such Contractor. Contractors are independent contractors and are not employees or agents of Shiftsmart. You agree to provide the Contractors with a safe, suitable workplace and equipment, and to comply with all applicable federal, state, and local employment laws including appropriate workplace-specific safety and health training that adequately addresses potential hazards at your worksite. You supervise, direct, and control the work performed by Contractors, and assume responsibility for all operational results, including losses or damage to property or data in the care, custody, or control of such Contractors. Shiftsmart is not responsible or liable for the actions or inactions of any Contractor in relation to any services they perform. Shiftsmart does not guarantee or warrant the Contractors' performance of the Work Requests or the outcome or quality of the Services Engagements. If the Contractors have access to unattended premises or the care, custody, or control of case, checks, credit card numbers, ATM bank cards, negotiables, confidential information, trade secrets or other valuable property, you must take reasonable steps to safeguard such items and you acknowledge and agree that Shiftsmart is not responsible for any resulting loss or damage.

8.2 Documentation. Shiftsmart will, at your written request, conduct criminal history checks, employment eligibly verification, and drug screens as permitted by state law. The costs vary depending upon the specific test or report ordered and the charges will be agreed upon prior to ordering the tests and/or reports. Shiftsmart will provide Contractors for positions requiring specific licenses, permits, approvals, authorizations, registrations, or certifications, if notified in writing prior to an assignment. You must notify Shiftsmart in advance, so Contractors who are qualified to meet your specifications can be assigned. Although Shiftsmart may independently verify a Contractor's documentation from time to time as Shiftsmart deems appropriate in its reasonable discretion, you are responsible for verifying a Contractor's qualifications and Shiftsmart is not responsible if you fail to ensure a Contractor is qualified.

8.3 Shiftsmart and Customer Relationship. The parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between you and Shiftsmart as a result of this Agreement or any use of the Services, including the Shiftsmart Platform.

8.4 Contractor Classification. You assume all liability for proper classification of Contractors as independent contractors based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between you and a Contractor. Contractor does not have authority to enter into written or oral (whether implied or express) contracts on your behalf. Shiftsmart does not, in any way, supervise, direct, or control any Contractor's work or services performed in any manner. Shiftsmart does not set any Contractor's work hours or location of work, nor is Shiftsmart involved in determining the type or manner of compensation to be paid for any Work Request or Services Engagement. Shiftsmart will not provide any Contractor with training or any equipment, labor or materials needed for a particular Services Engagement. Shiftsmart will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and each Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Contractor's performance of Services Engagements and any related services. Except for Direct Hires, you may not require an exclusive relationship between you and a Contractor. A Contractor is free at all times to perform Services Engagements, be employed by or otherwise engage with persons or businesses other than you, including any of your competitors. You agree to indemnify, hold harmless and defend Shiftsmart from any and all claims arising out of or related to a Services Engagement, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Shiftsmart was an employer or joint employer of a Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.

8.5 Insurance. As independent contractors, Shiftsmart is not responsible for insurance coverage of Contractors. Specifically, in the event that a Contractor is injured while working in the course and scope of an engagement sourced through the Services, you acknowledge and understand that the Contractor will not be covered by any workers compensation insurance that Shiftsmart may otherwise provide to its employees. Further, if a Contractor's actions cause an injury to a third party while the Contractor is working in the course and scope of performing a Services Engagement or otherwise, you acknowledge and agree that the Contractor is not and will not be covered by any general liability, automobile liability, or professional liability insurance coverage that Shiftsmart may have, and Shiftsmart is not making any commitment to defend or indemnify the Contractor in such circumstances, and specifically denies such obligation.

  1. TERMINATION

9.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein, unless a different term is set forth in the Order.

9.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon thirty (30) days prior written notice to the other party, unless otherwise noted in an Order; (b) immediately, without notice, for the other party's material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Shiftsmart may terminate this Agreement or deactivate your Account immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Shiftsmart, to receive the Services, or as otherwise set forth in this Agreement.

9.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Shiftsmart App from any of your devices. Outstanding payment obligations and Sections 3 ("Fees and Payment"), 4 ("IP Ownership"), 5 ("Confidentiality"), 6 ("Disclaimers"), 7 ("Limitation of Liability"), 9.3 ("Effect of Termination") and 10 ("Miscellaneous") shall survive any termination of this Agreement.

  1. MISCELLANEOUS

10.1 Law. This Agreement or any claim, cause of action, dispute or proceeding ("Claim") arising out of or related to this Agreement shall be governed by the laws of the State of Texas regardless of your country of origin or where you access the Shiftsmart Platform, and notwithstanding any conflicts of law principles.

10.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

10.3 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Shiftsmart may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an affiliate; or (b) to an acquirer of all or substantially all of Shiftsmart's business, equity, or assets.

10.4 Notices. Shiftsmart may give any notice required by this Agreement by means of electronic mail to your email address on record with Shiftsmart, or by written communication sent by first class mail or pre-paid post to your address on record with Shiftsmart. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to Shiftsmart, addressed to the attention of Legal. Such notice shall be deemed given when received by Shiftsmart by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to 16479 North Dallas Parkway, Suite 315, Addison, TX 75001, or by email at [email protected]

10.5 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.6 Entire Agreement. This Agreement, including any Order referencing this Agreement, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Services Engagement, the terms of this Agreement shall prevail.

10.7 Modifications to the Shiftsmart Platform. Shiftsmart reserves the right at any time to modify or discontinue, temporarily or permanently, the Shiftsmart Platform or the Services (or any part thereof) with or without notice. You agree that Shiftsmart shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Shiftsmart Platform or the Services.