Employer of Record Client Services Agreement

Updated: 03/17/2025

For informational purposes only – executable versions will be sent directly to clients. Word version can be downloaded HERE

Client Services Agreement

This Client Services Agreement (the “Agreement”), made as of ____________ (the “Effective Date”), is entered into by Ascen Workforce, LLC, a Delaware limited liability company with a place of business located at 501 Boylston St., Floor 10, Boston MA 02116 (“Company”), GigSmart, Inc., a Delaware corporation with a place of business located at 999 18^th Street, Suite 1705S, Denver, CO 80202 (“Partner”), and ___________________________, a ______________________with a place of business located at _______________________________________(“Client”) (each a “Party” and collectively the “Parties”).

WHEREAS, Partner creates, develops and maintains workforce management technology products and solutions for customers and connects workers seeking work opportunities with businesses and other users in need of workers;

WHEREAS, Company is in the business of providing certain services as the employer of record for temporary workers engaged to perform services on a temporary assignment basis, including certain services provided via an online web application platform, and Partner has agreed to connect Company with opportunities to provide such employer of record services to Client;

WHEREAS, Client operates _________________________________________________, and desires to enter into this Agreement to utilize Partner’s business to identify and connect with workers to perform services for Client on a temporary or contract assignment basis, as to which Company shall serve as the employer of record;

WHEREFORE, in consideration of the mutual covenants and promises in the Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. Definitions

The following terms are used in this Agreement and defined below. Any terms defined elsewhere in this Agreement will be given equal consideration and importance as though set forth in this section:

a. “Affiliates” means any corporate or non-corporate business entity which controls, is controlled by, or is under common control with a Party to this Agreement. A corporation or non-corporate business entity shall be regarded as in control of another corporation or entity: (a) if it owns or directly or indirectly controls at least fifty percent (50%) of the voting stock or interests of the other corporation or entity; or (b) in the absence of the ownership of at least fifty percent (50%) of the voting stock or interests of such corporation or entity, if it possesses directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation or non-corporate business entity, as applicable.

b. “Employees” shall mean the person(s) for whom Client has identified, via Partner’s Platform, a role to provide Services to Client pursuant to an Assignment, and whose work for Client shall be performed as a statutory employee of Company. The person shall be referred to as “Candidate” prior to officially being employed by Company, and shall be referred to as “Employee” only after becoming statutorily employed by Company.

c. “Assignment” shall mean the project assignment for which each Employee is employed to provide Services for Client for a specified length of time as approved and agreed-upon between the Employee and Client.

d. “Candidate” shall mean the person(s) for whom Client has identified, via Partner’s Platform, a project role with a Client and is submitted to Client for approval, and upon receipt of Client approval is submitted to Company for review and onboarding. Candidate shall not become an Employee until Company has approved work authorization in accordance with applicable Laws and Candidate has satisfactorily executed all documentation required to begin employment in accordance with this Agreement.

e. “Services” shall mean the services to be performed for Client by Employees on Assignment.

f. “Employee Taxes” shall mean present and future taxes, levies, imposts, deductions, charges, fees, withholdings, payroll taxes, or taxes of any kind levied directly or indirectly in connection with each Employee’s wages or other payments (together with interest, penalties, and expenses in connection with them).

g. “Intellectual Property” shall mean all rights of a legal person or entity in, to or arising out of: (a) any United States, international or foreign patent or any application therefor, including any and all reissues, divisions, continuations, renewals, extensions and continuations in-part thereof; (b) invention (regardless of whether patentable in any country), invention disclosure, improvement, trade secret, proprietary information, know-how, technology or other technical data; (c) copyright, copyright registration, mask work, mask work registration or any application for any of the foregoing in the United States or any foreign country, or any other rights corresponding to any of the foregoing throughout the world; or (d) any other proprietary rights anywhere in the world.

h. “Laws” shall mean the laws that govern this Agreement, each Employee’s employment with Company, and/or Employee’s performance of Services for Client. This includes laws, codes, regulations, ordinances, requirements, guidelines, common law, and court decisions in any locality, city, township, town, county, state, and/or federal law applicable to each Employee’s worksite, home, or any other location where a law governs each Employee’s employment with Company, the requisite Assignment, and Services.

2. Services

a. Process for Identifying Candidates

b. Client will utilize the Partner Platform to identify Candidates for specific Assignments, including by creating a posting with the applicable bill rate, start date, end date (if applicable), job title, work description, employment classification, and any other relevant terms for each Assignment, and reviewing responses to such posting. Although the Partner Platform may assist Client in this endeavor, including through features such as automated notifications and offers, filter and sort features, and labeling such posting as a “W2” opportunity that requires employment by Company as employer of record, Client is solely responsible for verifying the credentials, experience, licenses, permits, certifications, and related registrations necessary for each specific Assignment. Client further acknowledges and agrees that Company and Partner shall have no responsibility or liability arising from verification of the credentials, experience, licenses, permits, certifications, and related registrations of Employees.

c. For each Candidate, through the Partner’s Platform, or independently, Client will (i) review the resume, credentials, and/or applicable skills of each Candidate as necessary to confirm the suitability and competency of each Candidate with respect to the provision of the Services for the proposed Assignment; and (ii) be solely responsible for ensuring Candidates possess and maintain all required licenses, permits, certifications, and related registrations for the Services to be provided by the Candidate.

d. Client shall have the right, at its sole discretion, to accept or reject any Candidate for a proposed Assignment for any reason.

e. Company as Employer of Record.

f. Company shall provide services as the employer of record for each Employee during the Term of this Agreement in order to facilitate the employment of Employees for the purpose of providing Services to Client, which services shall include performance of the obligations set forth in Section 4 (Company’s Obligations).

g. Only Company can extend an offer of employment as an employer to Candidate. Company shall have the right, at its sole discretion to accept or reject any Candidate that is identified by Client for the proposed Assignment. Client shall not permit any Candidate to perform Services for Client prior to acceptance of the Assignment by Company and satisfaction of all onboarding requirements.

h. Termination of Employees

i. Unless otherwise agreed to in writing by the Parties for an applicable Assignment, all Services provided by Employees are provided “at-will” and are subject to termination by each Employee, Company or Client, with or without cause, and with or without notice, at any time, for any non-discriminatory and non-retaliatory reason.

j. Company shall have the right, at its sole discretion, to terminate any existing Assignment for any reason, which may include but not be limited to matters related to Partner and/or Client’s creditworthiness or financial condition, employment Laws, or any other reason.

k. Company Platform. Certain of the employer of record services to be provided under this Agreement may be accessed and/or performed via Company’s proprietary online web application platform (the “Company Platform”), which may be accessed either directly or via an authorized application programming interface (API). To the extent that the Company Platform is utilized, the Parties further agree that:

l. Terms of Service. The Parties shall comply with the terms of service of the Company Platform and any third-party applications or systems used to access the Company Platform, which terms of service are accessible at https://ascen.com/terms (“Company Terms”) and may be updated from time to time. In the event there is a direct conflict between the Company Terms and the terms of this Agreement, this Agreement shall apply.

m. Company Platform Service Levels. Company shall use commercially reasonable efforts to make the Company Platform available 24 hours a day, 7 days a week, except for: (a) planned downtime, and (b) unavailability caused by circumstances beyond its reasonable control, including, for example, Internet service provider failure or delay, third-party applications or systems, or denial of service attack.

n. Partner Platform. Certain of the services to be facilitated under this Agreement may be accessed and/or performed via Partner’s proprietary online and mobile application platform (“Partner Platform”), which is accessible through a mobile application. To the extent the Partner Platform is utilized, the Parties further agree that:

o. Terms of Service. The Parties shall comply with the terms of service of the Partner Platform and any third-party applications or systems used to access the Platform, which terms of service are accessible at https://gigsmart.com/terms/ (“Partner Terms”) and may be updated from time to time. In the event there is a direct conflict between the Partner Terms and the terms of this Agreement, this Agreement shall apply.

p. Partner Platform Service Levels. Partner shall use commercially reasonable efforts to make the Partner Platform available 24 hours a day, 7 days a week, except for: (a) planned downtime, and (b) unavailability caused by circumstances beyond its reasonable control, including, for example, Internet service provider failure or delay, third-party applications or systems, or denial of service attack.

3. Company’s Obligations

a. Employer of Record Services. Company shall perform the following employer of record services and obligations for each accepted Assignment for a Candidate to be employed as an Employee:

b. Company will become the employer of record (“EOR”) after the Candidate completes all the required onboarding agreements and documentation through the Company Platform or other mutually agreed upon form of writing, including but not limited to a written employment agreement with Company. Unless otherwise agreed to in writing by the Parties for an applicable Assignment, Company shall enter into an “at will” employment agreement with each Candidate submitted for onboarding. Each Employee shall be a statutory employee of Company and not an employee of Partner, Client, or any other affiliated entity; Client shall not make any representations to a Candidate or Employee that attempts to alter this at-will employment relationship. Company shall retain the right to communicate, without restriction, with Employees regarding their employment and the Services.

c. In the capacity of EOR, Company represents that it will have responsibility for the following for each Employee on Assignment:

d. Processing and completion of payroll payments to the Employee in accordance with the Assignment and this Agreement;

e. Withholding and depositing Employee Taxes and any other taxes or government-required charges that Company is required to pay and/or withhold by applicable Laws for the Employee, including federal and state unemployment payments;

f. Provision of legally required workers’ compensation insurance for the Employee;

g. Provision of insurance for the Employee as required pursuant to the terms of the Assignment, which may include professional liability, general liability, and hired auto insurance;

h. Performance of human resources administration tasks for the Employee, including coordination and completion of payments for paid sick leave, paid time off and Family and Medical Leave Act (FMLA) leave, administration of workers’ compensation insurance claims, administration of unemployment insurance claims, and other administration duties as required by applicable Laws.

i. Providing benefits information and coverage enrollment for employee benefits for the Employee, including (i) any legally required employee benefits, including federal or state healthcare insurance and provision of Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage as required by applicable Laws upon termination, and (ii) any additional healthcare or other employee benefits, to the extent eligible and agreed-upon by the Parties pursuant to the terms of the Assignment.

j. Administering anti-harassment or other general employee-mandated training for the Employee as required by applicable Law;

k. Maintaining all legally required payroll and employee records for the Employee; and

l. Complying with all other Laws as employer of record for the Employee.

4. Client’s Obligations

a. In connection with the Assignment of each Employee, Client will have responsibility for the following:

b. Client Supervision. Client shall be responsible for providing day to day supervision, direction, and control of each Employee on Assignment, and shall ensure that each Employee has the necessary equipment and supplies to perform the Services.

c. Assignment Information

d. Accuracy of Information. Client shall be obligated to ensure that all information provided to Partner and Company in connection with the Assignment is complete and accurate at all times during the Assignment. Client acknowledges and agrees that certain of the services and obligations to be provided by Company are contingent upon the accuracy and completeness of such information, and that Client shall be liable for any losses incurred and/or payments made by Company as a result of the provision of inaccurate or incomplete information by Client or Employees (as determined in good faith by Company).

e. Change in Job Duties. Client shall set forth the job description and scope of Services to be provided by Employees on a Statement of Work, a form of which is attached hereto as Appendix A (“SOW”). Client shall be obligated to ensure that the job duties and/or scope of Services provided by Employees are not changed without Company’s express prior written approval and updated on the SOW. In the event Employees perform Services for Client not set forth on the SOW, Client shall be deemed to be in material breach of this Agreement.

f. Notification of Assignment Termination. Client acknowledges and agrees that it shall be responsible to notify Company and Partner immediately upon being notified of the termination of an Assignment for any reason, including but not limited to the following events: (a) Client terminates or provides termination notice directly to Employee; (b) Employee provides notice of termination directly to Client; or (c) completion of the Assignment and/or termination of the Assignment by Client, whether earlier than the expected end date or later. Client acknowledges that a failure to provide timely notification to Company of such termination events may result in Company continuing to provide employer of record services related to the Assignment, and Client agrees that it shall be liable for any losses incurred and/or payments made by Company as a result of the failure to provide such timely notification.

g. Background Checks. Client shall be responsible to inform Company of any requirement for an Employee to submit to a background check, drug screen, or any other employment and/or contractor check.

h. Access to Worksite; Remote Work

i. Client shall provide each Employee with access to the worksite as agreed upon for the Assignment when necessary for the Employee to perform Services. Client understands that each Employee may be entitled to wages if no access is provided on a working day, and that Client will be invoiced for all hours as required by applicable Laws. Client is responsible for any applicable restrictions on Employee’s access to physical or electronic worksites.

j. Client shall be obligated to provide advance written notice to Company if Employee is permitted and/or expected to work remote for any portion of the Assignment.

k. Health and Safety. Client is obligated to ensure that Employees are not exposed to any hazardous conditions and/or conditions that violate any OSHA or safety law, rule, or regulation, whether pursuant to federal, state, or local Laws. Client shall further be obligated to inform Employees of all health, safety, hazard communication, training, and operation instructions in the same manner as Client’s own employees, and as required by applicable Laws, including all federal OSHA requirements. Client shall maintain complete and accurate records of any safety or hazard training provided to Employees, and shall make such records immediately available to Company, Partner, government regulators, or any other party required to be notified by applicable Laws in a timely manner, and upon request, where applicable. Client shall be obligated to inform Company in writing of (a) any injury incurred by an Employee in connection with the Assignment within twenty-four (24) hours of receiving notice thereof, and (b) the death of any Employee in connection with the Assignment within four (4) hours of receiving notice thereof. All OSHA reportable events and other required government reporting shall be reported by Client to the appropriate agency no later than ten (10) business days after the occurrence of an OSHA reportable event, or sooner if required by applicable Laws.

l. Client Policies. Client shall be obligated to comply with any applicable occupational, health, safety, reasonable accommodation under the Americans with Disabilities Act, lactation accommodation, anti-harassment, and anti-discrimination, and meal and rest break obligations in accordance with applicable Laws. Client shall further be obligated to ensure that it does not request or permit any Employee to perform services “off the clock”, inaccurately amend their worked hours, or forego their meal and rest breaks, and shall be responsible for promptly reporting any violation of these obligations to Company and Partner.

m. Employee Restrictions. Client shall not allow any Employee to (i) be on Client’s premises unattended, (ii) handle, use or be responsible for the transfer of cash or cash equivalents, sensitive access keys, credit and debit cards or banking information, confidential or trade secret information, or other valuables in connection with the assignment, without the express written consent of Company, or (iii) operate any machinery, automobiles, or other vehicles, without the express written consent of Company.

n. Investigations of Misconduct. Client shall promptly notify and report in writing to Company any allegations of misconduct involving an Employee, as the perpetrator, target, or otherwise including any allegations of discrimination, harassment, retaliation, bullying, workplace violence, or health and safety violations. Company and Client shall cooperate to conduct a proper investigation and implement any necessary remedial measures in the event of such report.

5. License, Ownership and Intellectual Property Rights

a. This Agreement shall not effectuate the transfer or license of any Intellectual Property rights of any Party to any other Party, except as expressly set forth herein.

b. Employee Work Product. Company does not assert a right to inventions, works of authorship, or original work created by any Employee performed in the scope of Services. In the unlikely event such rights naturally vest in Company by law, Company hereby grants and wholly assigns Client ownership of all rights to inventions, works of authorship, or original work created by Employees. At the request of Client, Company shall provide a copy of any agreement Company and Employees enter regarding Intellectual Property ownership or rights typically provided as a clause within the employment agreement. If Client desires additional legal protection or other intellectual property ownership or assignment, Client may enter into such an agreement directly with Employees, provided that Company and Partner each specifically disclaim any obligation to ensure the applicability or enforceability of a Client provided assignment agreement and will play no role beyond requesting the Employee to execute such agreement.

6. Confidentiality

a. Obligation of Confidentiality as to Party Confidential Information. The Parties acknowledge that each Party, as recipient (a “Receiving Party”), may receive Party Confidential Information of the other Party (a “Disclosing Party”). The Parties shall treat all Party Confidential Information as confidential and proprietary. The Receiving Party agrees to hold all Party Confidential Information in strict confidence and not to (i) copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Party Confidential Information to third parties other than the Receiving Party’s or its Affiliate’s directors, officers, employees or agents who have a need to know in connection with the performance of this Agreement or the exercise of the Receiving Party’s rights hereunder, or (ii) use such Party Confidential Information for any purposes whatsoever other than the performance of this Agreement or as otherwise permitted hereunder. To the extent applicable, the Receiving Party agrees to advise its directors, officers, employees and agents of their obligations to keep all Party Confidential Information confidential and shall be responsible for any wrongful disclosure or use by any such persons. Receiving Party will advise Disclosing Party immediately in the event Receiving Party learns or has reason to believe that any person who has had access to Party Confidential Information has violated or intends to violate the terms of this Agreement, and Receiving Party will cooperate with Disclosing Party in seeking injunctive or other equitable relief against any such person.

b. “Party Confidential Information” shall mean all trade secrets or confidential or proprietary information not in the public domain that relates to the business of any Party, including, but not limited to, the sales and operating information, existing and potential business and marketing plans and strategies, development plans, pricing (including the fees payable hereunder), financial information, policies and procedures, information relating to processes, specifications, programs and any other materials (tangible or intangible, machine- or human-readable) that the Disclosing Party has identified as confidential and/or proprietary, or by its nature or apparent to a reasonable person familiar with the industry is identifiable as confidential and/or proprietary, and that are disclosed by or through the Disclosing Party to the Receiving Party, either in writing, orally, electronically, photographically, or in any other recorded form, or by observation; without limitation of the foregoing, Party Confidential Information shall include Partner Materials (as Party Confidential Information) and Company Materials (as Company Confidential Information). Notwithstanding anything herein to the contrary, however, “Party Confidential Information” shall not include any information to the extent it (a) is or becomes a part of the public domain through no act or omission on the part of the Receiving Party, (b) is in the Receiving Party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement, as evidenced by the Receiving Party’s written records, (c) is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto, (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s written records, or (e) is released from confidential treatment by written consent of the Disclosing Party.

c. Employee Obligation of Confidentiality as to Client Confidential Information. Company and Partner shall each take reasonable efforts to ensure that (i) Employees will not use, copy, distribute or disclose any Client Confidential Information, except as needed to complete Services and/or as permitted in writing by Client or as otherwise required or permitted by applicable Laws; and (ii) Employees will not, except in the proper performance of duties as directed by Client, directly or indirectly disclose any Client Confidential Information without prior written approval of Client. Such reasonable efforts may include a confidentiality agreement or clause within the Employee’s employment agreement. Client may also request the Employee execute a confidentiality agreement with Client, as applicable, which is advised to ensure protection of such Client Confidential Information; provided that Company and Partner specifically disclaim any obligation to ensure the applicability or enforceability of a Client provided confidentiality agreement and will play no role beyond requesting the Employee to execute such agreement.

d. Legal Disclosure. Notwithstanding the foregoing obligations of confidentiality, any Party Confidential Information may be disclosed by the Receiving Party in order to comply with any court order, statute or governmental directive, provided that in the event that such court order, statute or governmental directive requires disclosure of such confidential information, the Receiving Party shall provide prompt notice to the Disclosing Party (except where restricted by applicable Laws) before such confidential information is disclosed and cooperate if the Disclosing Party seeks protective order or other appropriate remedy to restrict the disclosure of such confidential information, and if no such protective order or other remedy is obtained, the Receiving Party will furnish only that portion of such confidential information which it is advised by its counsel it is legally required to furnish.

e. Return of Party Confidential Information. Within thirty (30) calendar days of the other Party’s written request following termination of this Agreement (unless otherwise agreed in writing between the Parties to extend such date), each Party shall return to other Party all documents or other materials in whatever form, that contains Party Confidential Information and are in the Receiving Party’s possession, custody or control, except as otherwise provided in this Agreement or required by applicable Laws. Should Receiving Party determine that the return of any Party Confidential Information is not feasible, such Receiving Party will destroy the Party Confidential Information and certify the same to Disclosing Party in writing within thirty (30) calendar days from the date of the other Party’s written request. Notwithstanding any other provision of this Agreement, each Party shall be permitted to retain one (1) copy of all documents or other materials containing Party Confidential Information of the other Party for its records, as well as any archival copies located on electronic backup tapes or otherwise, which shall continue to be subject to all confidentiality and other obligations in this Agreement.

7. Client Fees, Invoicing and Payment

a. Client Fees. Client agrees to pay certain fees for the performance of the Services, use of the Partner Platform, other services and obligations to be performed by Partner and Company under this Agreement (the “Client Fees”). The Client Fees shall be calculated based on the rates set forth in separate agreement to be executed by Partner and Client for the applicable Assignment(s), with such compensation payable to Employees provided to the Company. The Client Fees shall be processed directly between Client and Partner through the Partner Platform, and Partner will remit funds to Company for payroll processing of compensation to Employees.

8. Representations and Warranties

a. Authority. Each Party represents and warrants to the other Party that: (a) it is a business entity duly formed, validly existing, and in good standing under the Laws of its jurisdiction of formation; (b) it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (c) the execution, delivery, and performance of this Agreement has been duly authorized by it; (d) this Agreement constitutes the legal, valid, and binding Agreement of it and is enforceable against it in accordance with its terms; and (e) it is under no obligation or restriction that would in any way interfere or conflict with this Agreement.

b. Performance. Each Party represents and warrants to the other Party that: (i) it shall perform its obligations under this Agreement using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; (ii) it shall comply with and ensure that its applicable personnel comply with the terms of this Agreement.

c. Non-Infringement. Each Party represents and warrants that none of the information or materials provided to or for use by the other Party infringe or will infringe any Intellectual Property rights of any third-party, and that as of the date hereof, it has no knowledge of any pending or threatened claims, litigation or other proceedings based on an alleged violation of such Intellectual Property rights.

d. Compliance with the Law. The Parties agree to comply with all applicable Laws in connection with the performance of obligations and exercise of rights under this Agreement, including those applicable to Candidates and Employees according to the responsibilities set forth in this Agreement.

e. Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION, PARTNER AND COMPANY EACH MAKE NO REPRESENTATION, WARRANTY, GUARANTY, CONDITION, UNDERTAKING, OR TERM OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN CONNECTION WITH ANY SERVICES, PERFORMANCE OF OBLIGATIONS OR ANY RESULTS THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, PARTNER AND COMPANY HEREBY SPECIFICALLY DISCLAIM, AND CLIENT SPECIFICALLY WAIVES, ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, CONDITIONS, UNDERTAKINGS AND TERMS WHATSOEVER PERTAINING TO ANY SUCH SERVICES PERFORMANCE OF OBLIGATIONS, OR ANY RESULTS THEREFROM, INCLUDING WITH RESPECT TO MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

9. Term and Termination

a. This Agreement shall commence on the Effective Date and shall continue for a term of one (1) year unless earlier terminated in accordance with the provisions of this Section (the “Term”). This Term of this Agreement will renew automatically for additional one (1) year periods unless earlier terminated by any Party in accordance with the provisions of this Section.

b. Termination for Cause. Each Party may, upon any material breach by any other Party of its obligations under this Agreement, terminate this Agreement for cause without prejudice to any right or remedy it may have with respect to such material breach; provided, however, that for any material breach that is capable of being cured, the breaching Party (or Parties) shall be given not less than ten (10) business days prior written notice of default and the opportunity to cure the default during such notice period. All Parties shall be copied on any written notice provided under this Section.

c. Termination for Convenience. Each Party may terminate this Agreement for any reason by giving not less than sixty (60) days’ prior written notice to the other Parties.

d. Survival. Sections 1 and 5-12 shall survive indefinitely the termination or expiration of this Agreement, as well as the definitions and any other obligations of the Parties which by their nature will continue beyond termination or expiration of this Agreement.

e. Effect of Termination. In the event of any termination of this Agreement: (i) any Services being provided by Employees pursuant to this Agreement shall be terminated; (ii) Partner and Company shall each have no further obligation to provide Services and/or perform obligations under this Agreement; and (iii) the termination of this Agreement shall not affect the liability of any Party to pay any other Party any sums due and owing under the Agreement as of the effective date of the termination and will not affect any Party’s rights with respect to transactions that occurred before termination.

10. Indemnification

a. Definitions

b. “Claim” shall mean any and all claims, causes of action, losses, liabilities, damages, expenses and costs, including attorneys’ fees and court costs.

c. “Client Indemnitees” shall mean Client, its Affiliates and each of their respective officers, directors, employees and agents. For clarification and the avoidance of doubt, the Parties agree that Client Indemnities shall not include Employees (as defined in this Agreement).

d. “Company Indemnitees” shall mean Company, its Affiliates and each of their respective officers, directors, employees and agents. For clarification and the avoidance of doubt, the Parties agree that Company Indemnities shall not include Employees (as defined in this Agreement).

e. “Partner Indemnities” shall mean Partner, its Affiliates and each of their respective officers, directors, employees and agents. For clarification and the avoidance of doubt, the Parties agree that Partner Indemnities shall not include Employees (as defined in this Agreement).

f. Client Indemnification. Client will defend, indemnify and hold harmless Partner and all Partner Indemnitees and Company and all Company Indemnitees, as applicable, from any and all Claims arising out of or related to: (i) Client’s or any Client Indemnitee’s negligence or willful misconduct in performing any of its obligations under this Agreement; and (ii) any actual or alleged breach of any representation, warranty, covenant, agreement or other provision of this Agreement by Client or any Client Indemnitee, including, but not limited to, any Claims arising from Services rendered to Client in violation of Section 4(A)(ii)(b). Provided, however, that Client shall not be obligated to defend, indemnify or hold harmless any other Party or its respective indemnitees from Claims to the extent arising out of or related to that Party’s own indemnification obligations under this Section.

g. Company Indemnification. Company will defend, indemnify and hold harmless Client and all Client Indemnitees and Partner and all Partner Indemnitees from any and all Claims arising out of or related to: (i) Company’s or any Company Indemnitee’s negligence or willful misconduct in performing any of its obligations under this Agreement; and (ii) any actual or alleged breach of any representation, warranty, covenant, agreement or other provision of this Agreement by Company or any Company Indemnitee. Provided, however, that Company shall not be obligated to defend, indemnify or hold harmless any other Party or its respective indemnitees from Claims to the extent arising out of or related to that Party’s own indemnification obligations under this Section.

h. Partner Indemnification. Partner will defend, indemnify and hold harmless Company and all Company Indemnitees and Partner and all Partner Indemnitees, as applicable, from any and all Claims arising out of or related to: (i) Partner’s or any Partner Indemnitee’s negligence or willful misconduct in performing any of its obligations under this Agreement; and (ii) any actual or alleged breach of any representation, warranty, covenant, agreement or other provision of this Agreement by Partner or any Partner Indemnitee. Provided, however, that Partner shall not be obligated to defend, indemnify or hold harmless any other Party or its respective indemnitees from Claims to the extent arising out of or related to that Party’s own indemnification obligations under this Section.

i. Indemnification Procedures. Promptly after receipt by a Client Indemnitee, Company Indemnitee or a Partner Indemnitee, as applicable (the “Indemnified Party”), of a threat, notice, or filing of any Claim against an Indemnified Party, the Indemnified Party will give notice thereof to the other Party (the “Indemnifying Party”), provided that failure to give or delay in giving such notice will not relieve the Indemnifying Party of any liability it may have to the Indemnified Party except to the extent that Indemnifying Party demonstrates that the defense of the Claim is materially prejudiced thereby. The Indemnifying Party shall have the right to undertake the defense of any such Claim with counsel reasonably satisfactory to the Indemnified Party and the Indemnified Party shall cooperate in such defense and make available all records, materials and witnesses reasonably requested by the Indemnifying Party in connection therewith at the Indemnifying Party’s expense. If the Indemnifying Party shall have assumed the defense of the Claim with counsel reasonably satisfactory to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses (other than for documented and reasonable costs of investigation) subsequently incurred by the Indemnified Party in connection with the defense thereof. The Indemnifying Party shall not be liable for any Claim settled without its consent, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall obtain the written consent of the Indemnified Party prior to ceasing to defend, settling or otherwise disposing of any Claim if as a result thereof the Indemnified Party would become subject to injunctive or other equitable relief or if the Indemnified Party may reasonably object to such disposition of such Claim based on an adverse effect on the Indemnified Party.

11. Limitation on Liability

a. IN NO CASE SHALL PARTNER OR COMPANY’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHERWISE, EXCEED IN THE AGGREGATE THE FEES PAID OR PAYABLE BY CLIENT WITHIN PRIOR TWELVE (12) MONTHS. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF OPPORTUNITIES, LOSS OF DATA, OR LOSS OF USE DAMAGES, ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b. Notwithstanding the foregoing limitation of liability provision, each Party shall be liable for unlimited direct, indirect, incidental or consequential damages to the extent: (i) arising out a breach of the Intellectual Property, confidentiality or non-solicitation obligations set forth in this Agreement; (ii) arising out of the Party’s indemnification obligations set forth in this Agreement; or (iii) resulting from the Party’s gross negligence or willful misconduct.

12. Miscellaneous

a. Independent Contractor Status. Each Party hereto and such Party’s Affiliates, directors, officers, employees and agents shall perform all obligations under this Agreement as an independent contractor of each other. There is no relationship of partnership, joint venture, employment, joint employment, franchise, or agency between the Parties, and no Party shall have any authority of any kind to bind the other Party in any respect whatsoever.

b. No Publicity. Each Party agrees that it shall not make any public statements about this Agreement or the work performed hereunder without all other Parties’ prior written consent, or use any other Party’s name, trademarks, or logo including without limitation in any customer lists or other marketing materials without such Party’s prior written consent.

c. Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon (a) personal delivery, (b) receipt from any reputable express courier, or (c) transmission via email. Such notices shall only be deemed effective if sent to the following address(es), which may be modified by notice sent in accordance with this provision:

Notices to Company:

Ascen Workforce, LLC
Attn.: Francis Larson
501 Boylston St., Floor 10
Boston, MA 02116
Email: legal@ascen.com

With Copy To:

Ascen Workforce, LLC
9450 SW Gemini Dr., PMB 28656
Beaverton, Oregon 97008-7105

and

Erik J. Ives

Fox Swibel Levin & Carroll LLP

200 W. Madison St., Suite 3000

Chicago, IL 60606

Email: eives@foxswibel.com

Notices to Partner:

GigSmart, Inc.

Attn: Mitch Catino

999 18^th Street, Suite 1705S

Denver, CO 80202

Email: mcatino@gigsmart.com

With Copy To:

Megan L. Schultz

Robbins, Kelly, Paterson & Tucker, LPA

312 Elm Street, Suite 2200

Cincinnati, Ohio 45202

Email: mschultz@rkpt.com

Notices to Client:

_______________________________

d. Governing Law, Venue & Remedies

I. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the state of Delaware, without respect to conflict of law principles. Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal and/or state courts, as applicable, located in Boston, Massachusetts, and each Party irrevocably submits to the jurisdiction and venue of such courts.

II. The Parties agree that it would be difficult to measure and calculate damages from any breach of the restrictive covenants set forth in this Agreement, including but not limited to the covenants and obligations set forth in Section 5 (License, Ownership and Intellectual Property Rights), and Section 6 (Confidentiality) of this Agreement, and that any such breach may cause irreparable harm. Accordingly, the Parties hereto agrees that in the event of any such breach, each Party hereto will have, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement, without any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

III. In connection with any Claim or other dispute arising under or in connection with this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party its court costs and documented reasonable attorneys’ fees and disbursements incurred in connection therewith, and in any appeal or enforcement proceeding thereafter, in addition to all other reasonably incurred, recoverable costs.

IV. Except for such claims provided under Section 12(D)(ii), any controversy or claim arising out of or relating to this Agreement or any exhibit hereto, or the breach thereof, will be settled by binding arbitration conducted before a single arbitrator who is knowledgeable in the field of law, business, employment, or technology that is the subject of this Agreement. The site of any such arbitration will be Boston, Massachusetts, provided the arbitration hearing(s) may be conducted in-person or remotely via appropriate videoconferencing technology. The arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as otherwise provided herein, each party will bear its own costs and expenses, including fees and expenses of counsel, associated with the arbitration.

e. Entire Agreement; Amendments; No Waiver

I. This Agreement constitutes the entire agreement between Client, on one hand, and Partner and Company, on the other hand, and supersedes all prior and contemporaneous agreements, statements, representations and understandings between the Parties, whether written or oral, relating to the subject matter of this Agreement. In the event there is a direct conflict between the terms of this Agreement and any other agreement between Client, on the one hand, and Company and/or Partner, on the other hand, including, but not limited to the Company Terms and Partner Terms, the terms of this Agreement shall apply.

II. This Agreement may be amended or modified only by a written instrument executed by each of Client, Company and Partner.

III. No delay or omission by any Party hereto in exercising any right under this Agreement shall operate as a waiver of that or any other right, unless such waiver is in writing signed by an authorized representative of the waiving Party. Any written waiver given by any Party hereto on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

f. Interpretation. The captions used in this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section hereof.

g. Severability. In the event that any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.

h. Assignment; No Third Party Beneficiaries

I. No Party may assign this Agreement without the prior written consent of the other Parties and any attempt to do so will be null and void. Notwithstanding anything to the contrary in this Agreement, Company may assign this Agreement, without prior written consent of the Client and Partner, to the following: (i) any Affiliate; or (ii) any entity in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of Company.

II. This Agreement shall be binding upon, and inure to the benefit of, the Parties and each of its respective permitted successors and assigns.

III. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing, express or implied, in this Agreement is intended to create or be construed to create any rights of enforcement in any Candidate, Employee, or any other persons or entities who are neither Parties to this Agreement nor nonparty indemnitees.

i. Force Majeure. No Party shall be liable or responsible to any other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to any other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; and (g) national or regional emergency. The Party suffering a force majeure event shall give prompt notice of such event to each other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized.

j. Counterparts. This Agreement may be executed in counterparts including facsimile, PDF and other electronic copies, each of which will be deemed an original and together will constitute the same instrument.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the day and year first written above.

ASCEN WORKFORCE, LLC
By:_________________________________
Name:
Title:

GIGSMART, INC.

By:_________________________________
Name:
Title: