Workforce Platform Services Agreement

This Workforce Platform Services Agreement (this “Agreement”) is between Definity Workforce Solutions, Inc., DBA Definity (“Definity”) and the staffing agency identified on the applicable Order Form (“Staffing Agency”) and, together with any Order Forms referencing this Agreement, sets forth the terms and conditions governing Staffing Agency’s access to Definity’s workforce platform that is designed to facility connections between clients and staffing agencies for the procurement of staffing services. This Agreement is effective as of the date listed on the initial Order Form that references this Agreement (the “Effective Date”). In the event of any conflict between this Agreement and any Order Form, this Agreement will prevail unless such Order Form expressly states that it will supersede this Agreement with respect to any particular provision. Definity and Staffing Agency may be referred to herein collectively as the “Parties” or individually as a “Party”. Certain capitalized terms used in this Agreement are defined in Section 15.

This Agreement applies notwithstanding any terms and conditions contained in, referenced in, or accompanying any purchase order or other document, record, or communication issued or otherwise transmitted by Staffing Agency, whether in written, electronic, or any other form (“Other Terms”). Any terms and conditions contained in any Other Terms that are different from or in addition to the terms and conditions of this Agreement or any terms in Definity’s order confirmation are expressly rejected by Definity. No conduct by Definity, including, without limitation, providing access to any Services, will constitute, or be construed to constitute, Definity’s assent to or recognition of an agreement containing terms and conditions that are different from or are not contained in this Agreement or Definity’s order confirmation.

1. Services

1.1. Generally. The Services are designed to allow Staffing Agency and Clients to connect with each other through the Services, to submit candidates for consideration for open positions with Clients, facilitate the listing and tracking of such open positions, and manage payment for services provided to Clients by Providers. Except as expressly set forth in this Agreement or otherwise specified or communicated to Staffing Agency by Definity, Definity and the Services act only as an intermediary to facilitate Clients’ engagement of Staffing Agency’s Providers through the Services.Definity is not involved directly in Staffing Agency’s negotiations or the delivery of staffing services and is not a party to any services agreements or work orders that Staffing Agency enters into with the Clients.

1.2. Access to the Services. Subject to the terms and conditions of this Agreement, Definity hereby grants Staffing Agency a limited, non-exclusive, revocable, non-sublicensable, non-transferable (except in compliance with Section 14.6) right to access and use the Services during the Term (as defined below), in accordance with the Documentation, solely for its internal business purposes, provided that Staffing Agency strictly complies with its obligations under this Agreement.

1.3. Documentation License. Subject to the terms and conditions of this Agreement, Definity hereby grants Staffing Agency a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.6) license to use the Documentation, during the Term, solely in connection with Staffing Agency’s authorized access to and use of the Services.

1.4. Use Restrictions. Staffing Agency will not at any time, and will not permit any third party (including Authorized Users) to, directly or indirectly: (a) use the Services in any manner beyond the scope of the rights expressly granted in this Agreement; (b) modify or create derivative works of the Services or any accompanying Documentation, in whole or in part; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (d) frame, mirror, sell, resell, rent or lease use of the Services to any other third party, or otherwise allow the Services to be used for any purpose other than for the benefit of Staffing Agency in accordance with this Agreement; (e) use the Services to store, transmit, upload or submit any infringing, libelous or otherwise unlawful or tortious material or any data (including any Staffing Agency Data) for which it does not have the necessary consents or rights to store, transmit, upload or submit (as applicable) in connection with the Services; (f) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (g) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Definity for use expressly for such purposes; (h) use the Services, Documentation or any other Confidential Information (as defined below) of Definity to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; (i) use or permit the use of the Services or Documentation in any manner or for any purpose that violates any applicable laws, rules and regulations; or (j) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Services.

1.5. Authorized Users. Staffing Agency will not permit anyone other than Authorized Users to access or use the Services. Staffing Agency may permit Authorized Users to access and use the Services solely on behalf of Staffing Agency, provided that Staffing Agency ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Staffing Agency is responsible for any act or omission by Authorized Users in connection with their use of the Services. Staffing Agency will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Definity if Staffing Agency knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created.

1.6. Notifications for Open Positions. Definity will notify Staffing Agency of, or enable Staffing Agency to view through the Services, open positions with those Clients for which Staffing Agency is an approved agency. Staffing Agency will have the ability, through the Services, to access and view each such open position and related specifications, including: (a) the specialty or type of personnel needed, (b) the location to which the Provider will be assigned, (c) the anticipated length of the assignment, including shift times and duration, (d) the required qualifications, (e) any training or other requirements, and (f) submit Providers for consideration by Clients.

1.7. Selection, Rejection, and Replacement. All Providers are subject to a Client’s prior approval. Upon Staffing Agency’s submission of a Provider, the Client will determine, in its sole discretion, whether to accept or reject such Provider. The Client may also request the replacement of a Provider at any time. Staffing Agency will use commercially reasonable efforts to replace such Provider with a person of equal or better qualifications. The replacement candidate will be subject to the Client’s prior written approval.

1.8. Confirmation of Assignment. Staffing Agency will submit confirmation of all assignments signed by the Client and Staffing Agency to Definity, through the Services, prior to the commencement of each assignment term in order to confirm the name of the Provider, the length of the assignment, the hourly billing rate and other payments, and any and all travel or housing arrangements or costs (if applicable) which have been preapproved by Client (“Confirmation of Assignment”). The length of any assignment may be extended upon mutual agreement of the Client and Staffing Agency.

1.9. Modification, Suspension, or Termination. Staffing Agency acknowledges and agrees that the Services may be modified, upgraded, or updated at any time during the Term. Definity is entitled, without liability to Staffing Agency, to immediately suspend, terminate or limit Staffing Agency’s or any Authorized User’s access to any or all parts of the Services at any time in the event that: (a) Definity discovers that the Services are being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) Definity determines that the Services are being used in an unauthorized or fraudulent manner or that Staffing Agency has provided false or misleading information; (c) Definity determines that Staffing Agency is not providing consistent qualified Providers to Clients; (d) Definity is so required by law; or (e) Definity determines, in its sole discretion, that continued access may create a risk to the Services or to any other users of the Services. Definity will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Staffing Agency’s or any Authorized User’s right to use the Services pursuant to this Section 1.9.

2. Staffing Agency Responsibilities

2.1. Staffing Agency Cooperation. Staffing Agency will: (a) provide Definity with the Staffing Agency Data in the form and format requested by Definity or a Client, or as otherwise required to access and use the Services; (b) be responsible for all Staffing Agency Data; (c) ensure compliance with all applicable laws, rules, and regulations in connection with its use of the Services and performance of its obligations under this Agreement; and (d) ensure that Providers maintain all necessary licenses and certifications required to perform the applicable services for Clients. Staffing Agency will also timely provide Definity with any other information or cooperation as reasonably required by Definity in order to facilitate Definity’s performance under this Agreement.

2.2. Employment of Providers. All Providers will be the employees of Staffing Agency. Nothing in this Agreement will be construed to create or imply (a) an employment relationship between a Provider and Definity, (b) an employment relationship between a Provider and a Client, or (c) an independent contractor relationship between a Provider and Definity. Staffing Agency will not engage or submit independent contractors (i.e., individuals not employed by Staffing Agency) as Providers under this Agreement. Staffing Agency represents and warrants that it has, retains, and will continue to bear the sole, total, and exclusive responsibility as the employer of Providers under this Agreement, and will be responsible for any act or omission by its Providers in connection with the performance of services for Clients. With respect to each Provider, Staffing Agency will: (i) withhold or pay any income, wages, Social Security, or other federal, state, or local taxes; (ii) make any required insurance contributions, including unemployment or disability; (iii) obtain worker’s compensation insurance on behalf of Providers; (iv) administer all payroll processing and tax reporting; and (v) ensure Providers are provided benefits to the extent they are eligible under benefits plans maintained by Staffing Agency, if any.

2.3. Qualification of Providers. Staffing Agency will maintain an updated employment file for each Provider that complies with The Joint Commission’s requirements (and applicable state and federal law) and will certify that each Provider meets the requirements under this Agreement. Staffing Agency will promptly notify Definity upon the occurrence of any complaint and upon obtaining knowledge of any facts or circumstances that indicate a Provider is not in compliance with this Agreement. Prior to submitting a candidate to a Client and during the Term, Staffing Agency will ensure that each Provider:

2.3.1.Satisfies all specific Client requirements communicated to the Staffing Agency by the Client or otherwise through the Services.

2.3.2.Meets all of the licensure and continuing education requirements applicable to the Provider’s specialization.

2.3.3.Has been verified as authorized to work and be employed in the United States.

2.3.4.Has not been previously rejected or subject to a replacement request by the Client to whom they are being submitted.

2.3.5.Has not previously been terminated by the Client or, during the six months prior to the assignment, voluntarily resigned from the Client.

2.3.6.Has worked in their specialty or field for at least two years.

2.3.7.Has completed the necessary orientation training as required by the Client.

2.4. Safety and Health Laws. Staffing Agency will give each Provider written materials relating to safety, universal precautions, occupational hazards, and blood borne pathogens. Staffing Agency will report all work-related injuries or blood borne pathogens exposures involving Providers to Definity within twenty-four (24) hours of discovery of the same and will be solely responsible for payment of any and all testing related to work-related injuries or exposures. In the event that any Provider is injured while working on a Client’s premises, Staffing Agency, upon notice, will arrange for all applicable testing and medical care related to the work-related injury at its expense.

2.5. Client Policies. Staffing Agency and its Providers will comply with a Client’s applicable policies and procedures provided or otherwise made available to Staffing Agency from time to time, including Client workplace policies, codes of conduct, wage and hour policies, and any other standards related to performance, the reporting of patient abuse, safety, dress code, and documentation. Clients may require a Provider to undergo drug and alcohol testing and background checks pursuant to its policies and in compliance with all applicable laws and regulations. If any Provider refuses to submit to the required testing, or if any test results reveal any prohibited substance use, or any background check results in ineligibility, Client may immediately request replacement of the Provider without penalty.

2.6. Cancellation of Licensure. In the event a Provider ceases to maintain all necessary licenses and certifications, Staffing Agency will immediately notify Definity and the Client, and the Client may cancel the assignment. In such instance, Staffing Agency will use its best efforts to present a qualified replacement within five (5) days. If Staffing Agency is unable to present a replacement candidate acceptable to the Client within five (5) days, the Client may cancel the assignment without liability.

2.7. Insurance. Staffing Agency will, at its sole expense, obtain and maintain the following insurance coverage during the Term: (a) professional liability insurance for all Providers in an amount not less than $1,000,000 per occurrence and $3,000,000 in aggregate; (b) workers’ compensation, unemployment insurance, and any other insurance or benefit required by law, at statutory limits, on behalf of the Providers and all other employees of Staffing Agency; (c) general liability insurance for Staffing Agency, its Providers, and its employees, officers, and other agents for bodily injury, personal injury, or property damage in an amount not less than $2,000,000 per occurrence and $4,000,000 in aggregate. Staffing Agency will provide a certificate of insurance evidencing the foregoing insurance coverage and will promptly notify Definity if any required insurance policy lapses, is cancelled, or is materially and adversely changed. Definity will be added as an additional insured to Staffing Agency’s general and professional liability insurance policies required by this Agreement.

2.8. Non-Circumvention. Except as otherwise expressly agreed by the Parties, during the Term and for one (1) year thereafter, Staffing Agency will not, directly or indirectly, (i) solicit, communicate with, or engage, or otherwise act to divert any Clients identified through the Services for the purpose of providing staffing services outside the Services or circumventing Definity’s collection of the Services Fees (as defined below) (collectively, the “Restricted Activities”) or (ii) enter into any agreement with a Client regarding the Restricted Activities. This restriction applies to providing both temporary or permanent Providers and outsourced recruiting services. Further, Staffing Agency agrees not to accept or entertain such solicitations or communications from Clients, except to respond to the open positions listed through the Services. If a Client identified through the Services contacts Staffing Agency directly for staffing services outside of the Services, Staffing Agency will promptly advise the Client to reach out to Definity’s designated representative, cease further communication with the Client with respect to such services, and immediately notify Definity.

3. Data

3.1. Staffing Agency Data. Definity acknowledges that, as between Definity and Staffing Agency, Staffing Agency retains all of its right, title, and interest, including intellectual property rights, in and to the Staffing Agency Data. Staffing Agency hereby grants to Definity a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, distribute, display, perform, and modify the Staffing Agency Data: (a) solely for the purpose of hosting, operating, and providing the Services and Definity’s other related products, services and technologies during the Term; and (b) on a perpetual basis to create Aggregate Statistics and to use Aggregate Statistics in connection with any business purpose (including for the purpose of improving and developing Definity’s current and future products, services, methods and processes). Staffing Agency will be solely responsible for the accuracy and completeness of all Staffing Agency Data, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Staffing Agency or an Authorized User through the Services, including any Staffing Agency Data relating to the employment or contracting status of any Provider, and Definity expressly disclaims any and all responsibility for such Staffing Agency Data.

3.2. Prohibited Data. The Services may not be used with data that (a) requires a license or other permission for use in connection with the Services unless Staffing Agency has all necessary rights to make such data available for use in connection with the Services; (b) is otherwise subject to restrictions on distribution or transferability under any applicable laws; or (c) constitutes “protected health information” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended (collectively, “Prohibited Data”). Staffing Agency agrees not to submit, post, transmit or otherwise introduce Prohibited Data into or through the Services.

3.3. Data Security. Definity will maintain commercially reasonable administrative, physical, and technological safeguards designed to protect Staffing Agency Data processed in connection with the Services against unauthorized access, use, modification or disclosure. In addition, the Parties agree to the terms of the Data Processing Addendum available at https://definitywfs.com/data-processing-addendum/ (the “DPA”), which are hereby incorporated by reference to this Agreement.

3.4. Aggregate Statistics. Notwithstanding anything to the contrary in this Agreement, Definity may monitor Staffing Agency’s use of the Services and collect and compile Aggregate Statistics. As between Definity and Staffing Agency, Definity owns and retains all right, title, and interest in and to the Aggregate Statistics, and all intellectual property rights therein. Staffing Agency agrees that Definity may (a) make Aggregate Statistics publicly available in compliance with applicable laws; and (b) use Aggregate Statistics as provided in Section 3.1 and otherwise to the extent and in a manner permitted under applicable laws, provided, that such Aggregate Statistics do not identify Staffing Agency (including Staffing Agency’s corporate profile or headquarter location), any individual Provider, or Staffing Agency’s Confidential Information.

4. Support; Service Levels

4.1. Support. Definity will provide Staffing Agency with reasonable technical support for the Services.

4.2. Service Level Agreement. Subject to the terms and conditions of this Agreement, Definity will use commercially reasonable efforts to make the Services available. Staffing Agency acknowledges and agrees that the service levels are performance targets only and any failure of Definity to meet any service level will not result in any breach of this Agreement or any payment or liability of Definity to Staffing Agency.

5. Fees and Payment

5.1. Services Fees. Staffing Agency will pay Definity the applicable service fee set forth in the Order Form or as otherwise specified by Definity and any other applicable processing fees (collectively, the “Services Fees”), and any applicable taxes, for use of the Services, in accordance with this Agreement and without offset and deduction. Definity reserves the right to: (a) change the Services Fees and to institute new charges and Services Fees at the end of the Initial Term (as defined below) or then-current Renewal Term (as defined below), upon prior notice to Staffing Agency; and (b) charge any additional fees for any additional features, upgrades, or other benefits not currently offered by Definity under this Agreement.

5.2. Transaction Flow. Staffing Agency authorizes Definity to receive and disburse funds from Clients on Staffing Agency’s behalf, and in connection with billing, collection and payment services, Definity and third-party payment processors on behalf of Definity may collect, withhold, and deduct from any disbursement to Staffing Agency the Services Fees and any applicable taxes. To the extent required by applicable law, Staffing Agency and Definity agree to and acknowledge the following: (a) Definity will, or will instruct payment processors to, materially comply with lawful instructions provided by Staffing Agency on where to transfer payments made by Client that are final (less any Services Fees and any applicable taxes); (b) Definity’s or payment processor’s receipt of payment is considered receipt of payment by Staffing Agency; and (c) Staffing Agency is aware that Definity (and any payment processor) acts as an agent for the purposes of billing, holding, receiving and disbursing payments actually made by Clients for the Providers’ services. Definity (and payment processors) does not otherwise act as Staffing Agency’s agent or other representative and are not responsible for any payments owed by Clients or collection of any outstanding amounts. Definity’s disbursement obligations are limited to amounts actually received by Definity (or its payment processors) from Clients, less deductions pursuant to the foregoing.

5.3. Payments. Payments due to Staffing Agency under this Agreement must be made in U.S. dollars by check, ACH, wire transfer of immediately available funds to an account designated by Staffing Agency or such other payment method mutually agreed by the Parties. Staffing Agency will receive all undisputed amounts, less the Services Fees and any applicable taxes, fourteen (14) days following the date of receipt of payment from the Client.

5.4. Taxes. The Services Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Staffing Agency agrees to pay such taxes that apply to Staffing Agency’s business activity (excluding U.S. taxes based on Definity’s net income) unless Staffing Agency has provided Definity with a valid exemption certificate. Without limiting the foregoing, in the event that Definity is required to deduct or withhold any taxes from the amounts payable to Staffing Agency hereunder, Definity will deduct such amounts from any applicable payments to Staffing Agency and make the necessary tax payment to the local tax authorities.

5.5. Disputed Invoices and Late Payment. All invoices will be generated and issued through the Services based on Client approved timecards. Staffing Agency will have fourteen (14) days from the date of the Client approved timecard to dispute or request adjustments to any such invoice. Additionally, the Client may delay or refuse payment if it determines that an invoice is inaccurate or incomplete, or if any amount is disputed. In such event, Definity will notify Staffing Agency of the issue and the reasons for the Client’s objection. The Parties will then work together in good faith to resolve the disputed portion of the invoice. For clarity, Staffing Agency acknowledges and agrees that Definity’s payment obligations are contingent upon receipt of payment from the Client, and Definity will not be liable for any delay or failure in payment resulting from the Client’s non-payment or delayed payment.

5.6. Records and Audit Rights. For the Term and a period of four (4) years thereafter, Staffing Agency will maintain complete and accurate books, charts, documents, reports, financial statements, and other documentation (collectively, “Records”) related to this Agreement or the performance of staffing services pursuant to this Agreement. During such period, Definity has the right to inspect and audit such Records in order to confirm Staffing Agency’s compliance with the terms of this Agreement. Any such inspection and audit will be conducted during regular business hours upon at least ten (10) days’ notice and in a manner that minimizes any interference with Staffing Agency’s business.

6. Term

6.1. Term. This Agreement commences on the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue in effect for a period of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party terminates the Agreement pursuant to the terms hereof.

6.2. Termination. Either Party may terminate this Agreement (a) at any time for any reason, by providing the other Party written notice at least thirty (30) days prior to the effective date of termination, or (b) effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach.

6.3. Additional Remedies. Definity may terminate this Agreement at any time and without advance notice if: (a) Staffing Agency breaches Section 2.2 or Section 2.8 of this Agreement; (b) Staffing Agency’s or Provider’s license or certificate is suspended, limited, or cancelled; (c) Staffing Agency files a petition in or for bankruptcy, reorganization, an arrangement with creditors, or is otherwise unable to pay its debts; or (d) the performance of this Agreement by Staffing Agency or any Provider jeopardizes the licensure or accreditation of Definity or a Client with The Joint Commission or any other similar organization, the Client’s participation in or reimbursement from any third-party payor, or the Client’s tax-exempt status.

6.4. Effect of Termination. Upon termination or expiration of this Agreement: (a) all rights and licenses granted to Staffing Agency under this Agreement will terminate; (b) Staffing Agency will, and will cause its Authorized Users to, immediately cease using the Services; (c) Definity will have no further obligation to provide access to the Services; (d) Providers who have started their assignment will continue to perform the services through the completion of the assignment term, and Definity will continue to manage the collection and disbursement of funds (less the Services Fees and any applicable taxes) to Staffing Agency during this period; (e) Provider assignments that have been scheduled, but not yet started as of the date of notice of termination, will be cancelled, unless otherwise agreed in writing; and (f) each Party will return or destroy all Confidential Information of the other Party in its possession or control (in accordance with the other Party’s direction).

6.5. Survival. Sections 1.4 (Use Restrictions), 2.2 (Employment of Providers), 2.8 (Non-Circumvention), 3.1(b) (Staffing Agency Data), 5.6 (Records and Audit Rights), 6.4 (Effect of Termination), 6.5 (Survival), 7 (Intellectual Property Rights), 8 (Confidentiality), 9 (Compliance), 11 (Representations and Warranties), 12 (Indemnified Claims), 13 (Limitation of Liability), 14 (General Provisions), and 15 (Definitions), are expressly intended to survive any expiration or termination of this Agreement.

7. Intellectual Property Rights

7.1. Definity IP. Subject to the limited rights expressly granted hereunder, Definity reserves and, as between the Parties will solely own, the Definity IP and all rights, title and interest in and to the Definity IP, and any modifications, improvements or derivatives of the foregoing. No rights are granted to Staffing Agency hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

7.2. Feedback. From time to time Staffing Agency may provide Definity with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Staffing Agency hereby grants Definity and its affiliates and successors a perpetual, irrevocable, sublicensable, royalty-free and fully-paid up license to use, modify, distribute, display, perform, make available, and otherwise freely exploit all Feedback given by Staffing Agency to Definity for its business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.

7.3. Trademarks and References. Staffing Agency hereby grants Definity a limited, non-exclusive, royalty-free license to use and display Staffing Agency’s name, designated trademarks and associated logos (the “Marks”), during the Term, in connection with: (a) the operation, maintenance and provision of the Services during the Term; and (b) Definity’s marketing and promotional efforts for its products and services, including by publicly naming Staffing Agency as a Definity staffing agency. All goodwill and improved reputation generated by Definity’s use of the Marks inures to the exclusive benefit of Staffing Agency. Definity agrees to use the Marks in compliance with any customary trademark usage guidelines provided by Staffing Agency which may be updated from time to time upon notice to Definity.

8. Confidentiality

8.1. Confidential Information. As used herein, “Confidential Information” means any business or technical information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as “confidential” or with similar markings or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure, including, without limitation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, competitive strategy, marketing plans, names and expertise of employees and consultants, and Client and Provider lists. Without limiting the foregoing, the Services and Documentation will be deemed Confidential Information of Definity. However, Confidential Information will not include any information or materials that: (a) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (b) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (c) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (d) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

8.2. Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Definity may use and modify Confidential Information of Staffing Agency for purposes of developing and deriving Aggregate Statistics. Each Party agrees to maintain in confidence and protect the other Party’s Confidential Information using at least the same degree of care as such Party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, contractors, or legal and financial advisors (collectively, “Representatives”) of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are informed of the nondisclosure obligations imposed by this Section 8.2 and bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. Each Party will be responsible for all acts and omissions of its Representatives.

8.3. Term. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, (a) with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law, and (b) with respect to any Confidential Information that constitutes Personal Information, such obligations will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to protection under applicable Privacy Laws.

8.4. This Agreement. The terms and conditions of this Agreement will constitute Confidential Information of Definity but may be disclosed on a confidential basis to a advisors, attorneys, actual or perspective potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

9. Compliance

9.1. Non-Discrimination. With regard to the selection, assignment, and treatment of Providers, Staffing Agency will not discriminate on the basis of race, religion, color, national origin, sex, age, disability, veteran status, sexual orientation, genetic information nor any other class or characteristic protected under applicable law. Staffing Agency will not condone or permit any illegal harassment or inappropriate conduct towards, or committed by, the Providers, and will cooperate in any investigation of such harassment or conduct. Staffing Agency will not engage in illegal retaliation against Providers.

9.2. Laws and Regulations. Staffing Agency will comply, and cause its employees, Providers, and subcontractors to comply, with all provisions of federal, state, and local laws that are applicable to Staffing Agency’s operations in connection with this Agreement, including applicable rules and regulations of all governmental agencies having jurisdiction over the provision of staffing services to Clients in connection with this Agreement.

9.3. List of Excluded Entities. Staffing Agency represents and warrants that Staffing Agency and its Providers are not currently named as an excluded entity or individual on the “List of Excluded Individuals/Entities” of the Department of Health and Human Services Office of the Inspector General (“OIG List”), the “Excluded Parties List System” of the System for Award Management (“EPLS”), the “Specially Designated Nationals List” (“SDN List”) or the “Foreign Sanctions Evaders List” (“FSE List”) of the Office of Foreign Assets Control, or any state debarment or exclusion list, making them ineligible to participate in any federal or state funded programs. Staffing Agency will promptly notify Definity if Staffing Agency or a Provider is named as an excluded entity or individual on any of the aforementioned lists.

9.4. Privacy. The Parties will comply with all applicable federal and state privacy laws (“Privacy Laws”) relating to Personal Information. Clients may provide appropriate confidentiality training to Providers and will not be construed as altering the obligation of Staffing Agency to pay wages and benefits, administer benefit programs, withhold and remit income and payroll taxes, or meet any other obligation as the employer of the Providers.

9.5. Access to Records. To the extent required by Section 1861(v)(l) of the Social Security Act, until the expiration of four (4) years after the furnishing of staffing services to Clients in connection with this Agreement, Staffing Agency will make available upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any of their duly authorized representatives, this Agreement and such books, documents, and records as are necessary to certify the nature and extent of the cost hereunder. In the event Staffing Agency carries out any of its duties under this Agreement through a subcontract, for the value or cost of $10,000 or more over a twelve (12) month period, with a related organization, such subcontract will contain a clause placing the same duty on the subcontractor as this Agreement places on Staffing Agency.

9.6. Avoidance of Fraud and Abuse. The Parties enter into this Agreement with the intent of conducting their relationship in full compliance with applicable state, local, and federal law, including the Anti-Kickback Statute, False Claims Act, Stark Law, and other the Medicare/Medicaid anti-fraud and abuse statutes. The Parties mutually acknowledge and agree that the terms of this Agreement have been negotiated at arms-length, represent fair market value, and do not take into account the volume or value of referrals between the Parties. Notwithstanding any unanticipated effect of any of the provisions of this Agreement, neither Party will intentionally conduct itself under the terms of this Agreement in a manner to constitute a violation of the Medicare and Medicaid fraud and abuse provisions. If new legislation hinders a Client’s ability to obtain reimbursement from Medicare/Medicaid due to the existence of this Agreement, or if this Agreement becomes illegal under new legislation, then this Agreement will terminate immediately.

9.7. Participation in Federal Health Care Programs. Staffing Agency represents and warrants that: (a) Staffing Agency and its Providers are not excluded from participation under any federal health care program, as defined under 42 U.S.C. 1320a-7b(f), for the provision of items or services for which payment may be made under a federal health care program; (b) Staffing Agency has not arranged or contracted with an employer, agent, or subcontractor that Staffing Agency knows to be excluded from participation in any federal health care program; and (c) no final adverse action, as such term is defined under 42 U.S.C. 1320a-7e(g), has occurred or is pending or threatened against Staffing Agency or any employee, contractor, or Provider engaged to provide items or services under this Agreement or to the Clients (collectively, “Adverse Action”). During the Term, Staffing Agency will notify Definity of any Adverse Action within ten (10) days of learning of such Adverse Action.

9.8. Minimum Essential Coverage. With respect to each Provider, Staffing Agency offers “minimum essential coverage” that is “affordable” and provides “minimum value” (each term in quotations as defined under the Patient Protection and Affordable Care Act of 2010 (“Affordable Care Act”) and the underlying regulations and guidance to satisfy the Code Section 4980H requirements with respect to such Provider and their dependents. Staffing Agency will, at Definity’s request, provide documentation satisfactory to Definity that the coverage offered by Staffing Agency is “minimum essential coverage” that is both “affordable” and provides “minimum value.” Additionally, Staffing Agency will, at Definity’s request, furnish information regarding any waiting period imposed by Staffing Agency with respect to enrolling in Staffing Agency’s group health plan, the methods used for determining full-time status of Staffing Agency’s personnel, and such other information related to compliance with the Affordable Care Act as Definity may reasonably request.

10. Third-Party Services

10.1. Third-Party Services. Certain features and functionalities within the Services may allow Staffing Agency and its Authorized Users to interface or interact with, access, use, and/or disclose Staffing Agency Data to compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Definity does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Staffing Agency is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Staffing Agency to use the Third-Party Services in connection with the Services.

11. Representation and Warranties

11.1. Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the legal right and authority to enter into this Agreement, and to perform its obligations under this Agreement, and (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

11.2. Staffing Agency Representations and Warranties. Staffing Agency represents and warrants to Definity that: (a) Staffing Agency has obtained and will obtain and continue to have, during the Term, all necessary rights, consents, authority and licenses for the access to and use of the Staffing Agency Data (including any Personal Information provided or otherwise collected pursuant to Staffing Agency’s privacy policy) as contemplated by this Agreement; (b) Definity’s use of the Staffing Agency Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Staffing Agency and any third party, including any Provider; and (c) with respect to its Providers, it will ensure compliance with all licensure, certification, exclusion/debarment checks, background clearance (conducted in compliance with all applicable laws and regulations), and other credentialing requirements. In the event that any required consent or permission previously granted by a Provider is revoked with respect to any Provider data and such revocation is communicated to Staffing Agency, Staffing Agency will promptly notify Definity in writing of the fact of such revocation.

11.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND OTHER DEFINITY IP ARE PROVIDED ON AN “AS IS” BASIS, AND DEFINITY MAKES NO WARRANTIES OR REPRESENTATIONS TO STAFFING AGENCY, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE DEFINITY IP, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEFINITY HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, DEFINITY HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. STAFFING AGENCY ACKNOWLEDGES AND AGREES THAT DEFINITY MERELY FACILITATES STAFFING AGENCY’S INTERACTIONS WITH THE CLIENTS AND HAS NO RESPONSIBILITY FOR THE CLIENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEFINITY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

12. Indemnified Claims

12.1. Indemnification by Staffing Agency. Staffing Agency will defend, indemnify and hold harmless Definity and its affiliates, and its and their directors, officers, employees, agents, successors, and assigns from and against any and all damages, losses and costs (including reasonable attorneys’ fees) arising from any claim, demand, suit or proceeding made or brought by a third party (“Claims”) arising from or related to: (a) any allegation that the Staffing Agency Data (or Definity’s use thereof), or Staffing Agency’s use of any Services in breach of this Agreement, violates, infringes or misappropriates a third party’s intellectual property right, privacy or other rights, or violates applicable law; (b) fraud, gross negligence, intentional misconduct or violation of applicable law, rules or regulations by Staffing Agency or any of its Providers; (c) Staffing Agency’s actual or alleged breach of its obligations under this Agreement; (d) any negligence by Staffing Agency or Providers, (e) any acts or omissions of its Providers in connection with the performance of services for Clients; (f) the employment, employment status, or contracting status of any Provider in connection with the performance of services for Clients; or (g) any obligations imposed by law with respect to employment, any withholding taxes, social security, unemployment or disability insurance, or similar items for the Providers in connection with the performance of services for Clients or payments made to the Providers for the rendering of services for Clients.

12.2. Indemnification Procedures. Definity will promptly notify Staffing Agency of the Claim for which indemnity is being sought and will reasonably cooperate with Staffing Agency in the defense and/or settlement thereof. Staffing Agency will have the sole right to conduct the defense of any Claim for which Staffing Agency is responsible hereunder (provided that Staffing Agency may not settle any Claim without Definity’s prior written approval). Definity may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if Staffing Agency refuses to fulfill its obligation of defense, Definity may defend itself and seek reimbursement from Staffing Agency.

13. Limitation of Liability

13.1. Exclusion of Damages. EXCEPT FOR: (A) A PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY), (B) STAFFING AGENCY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12, (C) STAFFING AGENCY’S BREACH OF SECTION 1.4 (USE RESTRICTIONS) OR (D) FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT BY EITHER PARTY, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

13.2. Total Liability. IN NO EVENT WILL DEFINITY’S TOTAL LIABILITY TO STAFFING AGENCY OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SERVICES EXCEED THE FEES PAID OR PAYABLE BY STAFFING AGENCY (BY WAY OF RETENTION BY DEFINITY) IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT DEFINITY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

13.3. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN DEFINITY AND STAFFING AGENCY, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

14. General Provisions

14.1. Entire Agreement. This Agreement, together with the DPA and any associated Order Forms executed by the Parties, are the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

14.2. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to Definity and to Staffing Agency, at the Party’s address, in accordance with this Section 14.2. Such notices will be deemed given: (a) when delivered personally; (b) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party; (c) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (d) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

14.3. Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

14.4. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

14.5. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Delaware and the Parties irrevocably consent to the personal jurisdiction and venue therein.

14.6. Assignment. Staffing Agency may not assign or transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without Definity’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Definity may freely assign or transfer this Agreement without Staffing Agency’s consent. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

14.7. Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 8, or Staffing Agency’s breach of Section 1.4, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

14.8. Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, third-party failures, raw materials or supplies, denial-of-service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

14.9. Export Control. Staffing Agency will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from Definity, without first complying with all export control laws and regulations of the United States and any other country applicable to the export, re-export, and import by Staffing Agency of those items.

14.10.U.S. Government End Users. The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

14.11.Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any agency, partnership, joint venture, or employer-employee relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

14.12.Non-Solicitation. During the Term and for twelve (12) months after its expiration or termination, Staffing Agency will not, directly or indirectly, solicit for employment, contractor arrangement, or other work engagement, any employee of Definity. The Parties acknowledge and agree that general employment recruiting activities such as publishing or posting job listings in newspapers or job sites or general solicitation for candidates do not constitute solicitation.

14.13.No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the Parties and their respective successors and assigns.

15. Definitions

15.1. “Aggregate Statistics” means data and information related to Staffing Agency’s and/or its Authorized Users’ use of the Services that are Deidentified by Definity.

15.2. “Authorized User” means Staffing Agency’s and its subsidiaries’ respective employees, consultants, contractors, and agents who are expressly authorized by Staffing Agency to access and use the Services on behalf of Staffing Agency under and in accordance with the rights granted to Staffing Agency pursuant to this Agreement.

15.3. “Clients” means hospitals, clinics, medical centers, and other healthcare providers that are users of the Services.

15.4. “Definity IP” means the Services, Documentation and all other proprietary technology of Definity and its affiliates, including software and other works of authorship, graphical user interfaces, workflows, products, databases, tools, processes, algorithms, data, know-how and trade secrets, designs, techniques, inventions and other tangible or intangible technical material or information, provided by or on behalf of Definity or used by Definity to provide the Services, implementation services, or support services in connection with this Agreement, and all improvements, enhancements, modifications and derivative works of any of the foregoing, in each case, together with all intellectual property rights therein. For the avoidance of doubt, Definity IP includes Aggregate Statistics, and any information, data, content or materials derived from Staffing Agency’s and/or its Authorized Users’ access to or use of the Services, but does not include, for clarity, Staffing Agency Data.

15.5. “Deidentify” means, with respect to any data, the removal of Personal Information (by blurring, obfuscating, or other appropriate means) to no longer allow the identification or re-identification of an individual.

15.6. “Documentation” means Definity’s user manuals, handbooks, and guides and other training and supporting materials relating to the Services, implementation services, or support services, which may be provided by Definity to Staffing Agency either electronically or in hard copy form.

15.7. “Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Services to be provided by Definity.

15.8. “Personal Information” means any information that relates to an identified or identifiable individual (including “personal data” as defined in the European General Data Protection Regulation (EU) 2016/679 (GDPR), “personal information” as defined in the California Consumer Privacy Act, as amended (CCPA), and data covered by analogous definitions under other Privacy Laws), or laws pertaining to rights of personality and publicity.

15.9. “Providers” means qualified healthcare workers, including nurses, clinicians, therapist, and other healthcare providers.

15.10.“Services” means Definity’s software-as-a-service workforce platform that allows Clients to manage and procure temporary staffing services and staffing agencies to connect with Clients to supply Providers.

15.11.“Staffing Agency Data” means (a) information, data, content, and other materials, in any form or medium, that is submitted, posted, collected, or otherwise transmitted by or on behalf of Staffing Agency or an Authorized User through the Services; and (b) Staffing Agency-specific data that is generated and made available to Staffing Agency by the Services through use of the data described in subsection (a) above, but excluding, for clarity, Aggregate Statistics.