Staffing Facilitation Addendum 042226

Staffing Services Addendum

This Addendum will apply to, and will be effective as of the date Engin8 first provides, any Staffing Facilitation Services, and will continue for so long as any Order referencing the Agreement and this Addendum remains in effect, unless earlier terminated in accordance with the Agreement or this Addendum. Capitalized terms used but not defined herein will have the meanings given to them in the Agreement.

1. Definitions
   1. “Staffing Facilitation Services” means Engin8’s Services related to its role under this Addendum that include acting as a referral facilitator and introducer of certain Staffing Personnel. For certainty, Staffing Facilitation Services do not include Engin8 itself as a provider of staffing, workforce, or employment services.
   2. “Staffing Personnel” means any independent contractor made available by Staffing Provider for placement with Customer pursuant to this Addendum and the applicable Provider Agreement and Contractor Agreement.
2. Purpose and Scope
   1. Purpose. For Customers obtaining any Staffing Facilitation Services, Engin8 will facilitate the placement of applicable Staffing Personnel with Customer through an applicable Third-Party Service staffing provider (“Staffing Provider“). Engin8’s role under this Addendum and for any Staffing Facilitation Services is strictly that of a facilitator and intermediary between Customer and Staffing Provider, and Engin8 is not the employer of, and does not directly contract with, any Staffing Personnel.
   2. Staffing Provider Relationship. Engin8 has entered into a separate agreement with Staffing Provider (the “Provider Agreement“) pursuant to which Staffing Provider maintains a network of independent contractors and agrees to make such contractors available for placement with Engin8’s customers. Staffing Provider is solely responsible for: (i) entering into and maintaining independent contractor agreements with each Staffing Personnel member (each, a “Contractor Agreement“); (ii) ensuring proper classification of Staffing Personnel as independent contractors under applicable law; (iii) paying all compensation owed to Staffing Personnel; and (iv) issuing all required tax documentation to Staffing Personnel.
   3. No Guarantee of Placement. Engin8 does not guarantee that it will be able to fulfill any particular staffing request or facilitate the placement of any particular number of Staffing Personnel. Engin8’s obligations under this Addendum are limited to making commercially reasonable efforts to coordinate with Staffing Provider to identify and facilitate the placement of independent contractors as described herein.
   4. No Direct Relationship. Customer acknowledges and agrees that: (i) each Staffing Personnel member is an independent contractor engaged by Staffing Provider, not by Engin8 or Customer; (ii) Engin8 does not employ, contract with, or otherwise directly engage any Staffing Personnel; and (iii) no employment, co-employment, or joint employment relationship exists or will be deemed to exist between Customer and any Staffing Personnel, or between Engin8 and any Staffing Personnel, by virtue of this Addendum or any placement hereunder.
3. Staffing Facilitation Services
   1. Placement Process. Upon Customer’s submission of a staffing request through an Order, Engin8 will use commercially reasonable efforts to:

      1. communicate Customer’s staffing requirements to Staffing Provider;
      2. work with Staffing Provider to identify one or more Staffing Personnel that Staffing Provider and Engin8 reasonably believe are qualified to fulfill Customer’s staffing requirements described in an applicable Order;
      3. facilitate Customer’s review of candidate profiles and relevant qualifications provided by Staffing Provider prior to placement; and
      4. coordinate with Staffing Provider and Customer to facilitate the onboarding and placement of approved Staffing Personnel to begin performing services for Customer.
   2. Staffing Requests. Each staffing request submitted by Customer in an Order will include, at minimum: (i) the nature and scope of the role(s) required; (ii) the anticipated start date and duration of the engagement; (iii) the location(s) where Staffing Personnel will perform services; and (iv) any specific qualifications, certifications, or requirements for Staffing Personnel. Engin8 reserves the right to decline to facilitate any staffing request that it determines, in its reasonable discretion, is unlawful, inappropriate, or outside the scope of Services it offers, or that Staffing Provider is unable or unwilling to fulfill.
   3. Replacement. If a Staffing Personnel member is unable to continue performing services for Customer for any reason, or if Customer reasonably determines that a Staffing Personnel member’s performance is unsatisfactory, Customer will promptly notify Engin8 in writing, and in any event within twenty-four (24) hours of making such determination, and Engin8 will use commercially reasonable efforts to work with Staffing Provider to identify and facilitate the placement of a suitable replacement. Customer’s obligation to notify Engin8 is in addition to, and does not limit, Customer’s right to terminate a placement immediately in accordance with Section 10(a) of this Addendum.
   4. Ongoing Support. During the term of any active placement, Engin8 will serve as the primary liaison between Customer and Staffing Provider for all matters relating to Staffing Personnel placements, including scheduling, performance concerns, and administrative matters. Staffing Provider will remain the primary point of contact for Staffing Personnel regarding their contractual relationship, compensation, and terms of engagement.
4. Independent Contractor Status; Relationship of the Parties
   1. No Employment Relationship. Customer acknowledges and agrees that each Staffing Personnel member is an independent contractor engaged by Staffing Provider, and no employment, co-employment, or joint employment relationship exists or will be deemed to exist between (i) Customer and any Staffing Personnel, or (ii) Engin8 and any Staffing Personnel, by virtue of this Addendum, the Staffing Facilitation Services, or any placement hereunder.
   2. Staffing Provider Obligations. Customer acknowledges that Staffing Provider, not Engin8, is solely responsible for: (i) entering into and maintaining Contractor Agreements with each Staffing Personnel member; (ii) paying all compensation owed to each Staffing Personnel member in accordance with the applicable Contractor Agreement; (iii) issuing all required tax documents (e.g., IRS Form 1099) to each Staffing Personnel member; (iv) ensuring that each Staffing Personnel member has executed all necessary agreements, including confidentiality and intellectual property assignment provisions, prior to placement; and (v) determining the proper classification of each Staffing Personnel member as an independent contractor under applicable law.
   3. Engin8 Representations Regarding Staffing Provider. Engin8 represents and warrants that: (i) it has entered into a valid and enforceable Provider Agreement with Staffing Provider; (ii) Staffing Provider has represented to Engin8 that it makes good-faith determinations regarding the proper classification of Staffing Personnel as independent contractors; and (iii) the Provider Agreement requires Staffing Provider to maintain appropriate insurance coverage and to comply with all applicable employment and tax laws. Engin8 makes no representations or warranties regarding the actual classification status of any Staffing Personnel or Staffing Provider’s compliance with applicable law, except as expressly set forth in this Section.
   4. Customer Responsibilities. Customer will: (i) not exercise a degree of direction or control over Staffing Personnel that is inconsistent with their status as independent contractors; (ii) direct all concerns regarding a Staffing Personnel member’s performance or conduct to Engin8 (who will coordinate with Staffing Provider) rather than directly managing or disciplining the Staffing Personnel member; and (iii) comply with all applicable laws in connection with its use of Staffing Personnel’s services.
   5. No Authority to Bind. No Staffing Personnel member will have authority to bind, obligate, or represent Customer or Engin8 in any capacity unless expressly authorized in writing.
5. Fees and Payment
   1. Facilitation Fees. The Fees payable by Customer under this Addendum encompass Engin8’s compensation for coordinating with Staffing Provider, facilitating placements, and administering the placement relationship. Engin8 separately compensates Staffing Provider pursuant to the Provider Agreement, and such amounts are included in the Fees charged to Customer. For certainty, Customer will have no direct payment obligations to Staffing Provider or any Staffing Personnel.
   2. Staffing Provider Payments. Engin8 will be solely responsible for all payments owed to Staffing Provider under the Provider Agreement. Fees will be invoiced monthly in advance. Any rate adjustments under this Addendum will apply prospectively only and will not affect Fees for services already rendered.
6. Non-Solicitation and Non-Circumvention
   1. Non-Solicitation of Staffing Personnel. During the term of a Staffing Personnel member’s placement with Customer and for a period of twelve (12) months following the end of such placement, Customer will not, directly or indirectly, solicit, recruit, engage, or hire such Staffing Personnel member (whether as an employee, independent contractor, or otherwise) without Engin8’s prior written consent. If Customer wishes to engage a Staffing Personnel member directly (whether through Staffing Provider or otherwise), Customer will notify Engin8 in writing and pay to Engin8 a conversion fee equal to twelve (12) months of the annualized compensation rate payable to the applicable Staffing Personnel member at the time of such engagement (the “Conversion Fee“), which Conversion Fee will be due and payable within thirty (30) days of the date on which Customer first directly engages such Staffing Personnel member. This restriction will not apply to Staffing Personnel who independently respond to general public job postings by Customer that are not specifically targeted at Staffing Personnel.
   2. Non-Circumvention of Engin8. During the term of this Addendum and for a period of twelve (12) months following termination, Customer will not, directly or indirectly, contact, engage, or contract with Staffing Provider for the purpose of obtaining staffing services that would otherwise be provided under this Addendum, without Engin8’s prior written consent. This restriction is intended to protect Engin8’s business relationship with Staffing Provider and its role as facilitator.
7. Intellectual Property and Confidentiality
   1. Work Product. Engin8 will use commercially reasonable efforts to ensure that the Provider Agreement requires Staffing Provider to include provisions in each Contractor Agreement assigning to Customer (or Staffing Provider, with a subsequent assignment to Customer) all intellectual property rights in any work product created by Staffing Personnel in the course of performing services for Customer. Engin8 will request written confirmation from Staffing Provider that such provisions are in place for each placement. To the extent Engin8 receives any assignment of work product rights from Staffing Provider, Engin8 hereby assigns to Customer all such right, title, and interest.
   2. Confidentiality. Engin8 will use commercially reasonable efforts to ensure that the Provider Agreement requires Staffing Provider to bind each Staffing Personnel member by confidentiality obligations no less protective than those set forth in the Agreement prior to being granted access to any Customer Confidential Information.
   3. Limitations. Customer acknowledges that Engin8’s ability to enforce or ensure Staffing Provider’s or Staffing Personnel’s compliance with IP assignment and confidentiality obligations is limited by Engin8’s role as facilitator and by the terms of the Provider Agreement. Engin8 makes no warranties regarding the enforceability or adequacy of such provisions except that Engin8 will use commercially reasonable efforts to include appropriate protective terms in the Provider Agreement.
8. Indemnification
   1. Customer Indemnification. In addition to and without limiting any indemnification obligations of Customer under Section 9.1 of the MSA, Customer will indemnify, defend, and hold harmless Engin8 and its officers, directors, employees, and agents from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) any claim by Staffing Personnel arising from Customer’s direction, supervision, or control of such Staffing Personnel in a manner inconsistent with independent contractor status; (ii) Customer’s breach of this Addendum; (iii) any allegation that Customer is a joint employer or co-employer of any Staffing Personnel to the extent arising from Customer’s conduct; (iv) any injury, death, or property damage occurring at Customer’s premises or work sites involving Staffing Personnel, except to the extent caused by Engin8’s gross negligence or willful misconduct; or (v) Customer’s breach of the non-solicitation or non-circumvention provisions in Section 6 of this Addendum.
   2. Third-Party Claims. Customer acknowledges that claims relating to Staffing Provider’s or Staffing Personnel’s performance, classification, compensation, or compliance with applicable law are the responsibility of Staffing Provider. Engin8 will use commercially reasonable efforts to cooperate with Customer in addressing any such claims and to facilitate resolution through Staffing Provider, but Engin8 will have no obligation to indemnify Customer for such claims.
9. Limitation of Liability
   1. Cap on Liability. Notwithstanding Section 9.3 of the MSA, and in lieu of the liability cap set out therein, Engin8’s aggregate liability to Customer under or in connection with this Addendum will not exceed the total Fees paid by Customer to Engin8 in the three (3) month period immediately preceding the event giving rise to the claim.
   2. Exclusion of Consequential Damages. In no event will either party be liable to the other for any indirect, incidental, special, consequential, or punitive damages, including, without limitation, loss of profits, loss of data, loss of business, loss of revenue, arising out of or relating to this Addendum, regardless of the theory of liability, except that this exclusion will not apply to a party’s indemnification obligations under Section 8 of this Addendum or to a party’s breach of any confidentiality obligations.
   3. Disclaimer. ENGIN8 MAKES NO WARRANTIES REGARDING THE PERFORMANCE, QUALIFICATIONS, CLASSIFICATION STATUS, OR CONDUCT OF STAFFING PROVIDER OR ANY STAFFING PERSONNEL. ENGIN8’S SOLE OBLIGATION IS TO USE COMMERCIALLY REASONABLE EFFORTS TO FACILITATE PLACEMENTS AS DESCRIBED IN THIS ADDENDUM. ALL SERVICES ARE PROVIDED “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Termination of Individual Staffing Personnel Placements
    1. Termination. Individual Staffing Personnel placement may be terminated by either party as follows:

       1. For Convenience: either Party may terminate an individual Staffing Personnel placement upon five (5) Business Days’ prior written notice to the other party, unless a shorter notice period is specified in the applicable Order.
       2. For Cause: Customer may terminate an individual Staffing Personnel placement immediately upon written notice to Engin8 where Customer reasonably determines that: (A) the Staffing Personnel member’s performance is unsatisfactory; (B) the Staffing Personnel member has engaged in misconduct, dishonesty, or behaviour that is harmful or potentially harmful to Customer’s business, personnel, or premises; or (C) the continued placement poses a material risk to Customer.

       In all cases of placement termination, Customer will notify Engin8 in writing promptly, and in any event no later than twenty-four (24) hours after Customer’s decision to end the placement, providing reasonable detail regarding the reason for termination. Engin8 will coordinate with Staffing Provider regarding all communications to the affected Staffing Personnel and will use commercially reasonable efforts to facilitate a replacement in accordance with Section 3.3 of this Addendum, where applicable.

    2. Effect of Termination. Upon termination of any individual placement: (a) Customer will cease utilizing the services of the affected Staffing Personnel; (b) Engin8 will coordinate with Staffing Provider regarding all communications to the affected Staffing Personnel concerning the end of the placement; and (c) the non-solicitation and non-circumvention obligations in Section 6 of this Addendum will continue in accordance with their terms.
    3. Survival. Sections 4 – 9 (inclusive) of this Addendum, and this Section 10.3 will survive expiration or termination of this Addendum.

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