IMPORTANT: Please read this Employer Service Agreement (“Agreement”) before using the Services (as defined below). This Agreement applies to the services provided by Wellhire, Inc. (“Wellhire”). By using the Services in any way, you represent and warrant that you have the authority to bind the entity identified as the organization (“Customer”) on the sign-up page to these terms, and are unconditionally consenting to be bound by and become a party to this Agreement with Wellhire. In addition, you represent and warrant that you are who you purport to be and you are not seeking access to the Services for the benefit of a third party or to enable a third party to breach any of the terms of this Agreement. Wellhire does not agree to any other terms, including without limitation any terms on Customer’s purchase order.Wellhire and Customer may be referred to individually as a “Party” and collectively as the “Parties.”

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Definitions

Certain capitalized terms, not defined above, have the meanings set forth below.

(a) “Authorized User” shall mean any individual who is a potential employee of Customer or such other entity as may be authorized, by virtue of such individual’s relationship to, or permissions from, Customer, to access the Services pursuant to Customer’s rights under this Agreement.

(b) “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential. Customer Confidential Information includes Customer Content.

(c) “Customer Content” shall mean the data, media and content provided by Customer through the Services.

(d) “Candidate Profile” shall mean (i) all data provided to Wellhire by or for Customer or the applicable job candidate, about a job candidate, and (ii) all evaluations, assessments, profiles, or other output from any services provided by Wellhire regarding such job candidate.

(e) “Services” shall mean the services requested by Customer and provided by Wellhire by means of access to certain content and use of the features and functionality of software applications available and accessible within the Web sites accessible at the URL www.wellhire.com and any successors thereto.

Access and Use

(a) Provision of Access. Subject to the terms and conditions contained in this Agreement, Wellhire hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the applicable Service requested during the Term for the number of Authorized Users enabled. On or as soon as reasonably practicable after the Effective Date, Wellhire shall provide to Customer the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Customer to access the Services.

(b) Responsibility for Application and Content Hosting. Wellhire shall, at its own expense, host the online based Services, provided that nothing herein shall be construed to require Wellhire to provide for, or bear any responsibility with respect to, the development, or with respect to any telecommunications or computer network hardware required by Customer to provide access from the Internet to the Services.

(c) Usage Restrictions. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (ii) create any derivative product from any of the foregoing; or (iii) allow third parties other than Authorized Users to gain access to the Services. Customer will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules and will not use any feature of the Services that is not permissible under applicable law.

(d) Candidates. Wellhire will make its online assessment service available to specified job candidates, subject to Wellhire’s Terms of Use Agreement available at http://www.wellhire.com/termsofuse and Privacy Policy available at http://www.wellhire.com/privacy. Wellhire will develop the Candidate Profiles for Customer and Customer will be given access to each Candidate Profile.

(e) Candidate Profiles. Wellhire will have the right to (i) use any de-identified data or information within all Candidate Profiles; and (ii) disclose any Candidate Profile (to the extent allowed under the Wellhire Terms of Use Agreement or Privacy Policy) and any aspects of the Candidate Profile that are de-identified and cannot be associated with Customer or Customer Content.

Customer Responsibilities

(a) Authorized Users Access to Services. Customer may permit any Authorized User to access and use the features and functions of the Services as contemplated by this Agreement. Customer will ensure that any such Authorized Users will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Wellhire’s Confidential Information and the Services as are provided by the terms hereof. User IDs cannot be shared or used by more than one Authorized User at a time. If Customer wishes to add additional Authorized Users, Customer may request such additional Authorized Users at any time and such Additional Users shall be added upon the Parties’ mutual written agreement. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Wellhire promptly of any such unauthorized use known to Customer.

(b) Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all Customer Content and the security of all passwords and other access protocols required in order to access the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Customer Content.

(c) Services Rules and Guidelines. Customer shall use the Services solely for its internal business purposes as contemplated by this Agreement and shall not use the Services to: (i) harvest, collect, gather or assemble information or data regarding other users without their consent; (ii) transmit through or post on the Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) attempt to gain unauthorized access to the Services, computer systems or networks related to the Services; or (vi) interfere with another user’s use and enjoyment of the Services.

Customer Responsibilities

(a) Fees. In consideration for the access rights granted to Customer and the Services performed by Wellhire under this Agreement, Customer will pay to Wellhire the fees listed below. All fees will be due and payable in advance. Unless Wellhire in its discretion determines otherwise, all fees will be billed in U.S. dollars.

* A “Completed Test” is defined as any test which a job candidate fully completes and is reportable to Customer within the Services.

(b) Disputed Fees. If Customer disputes any fees, taxes, or other charges billed by Wellhire, Customer shall notify Wellhire, in writing, of the disputed amount and any relevant information regarding the circumstances of the dispute. Wellhire shall acknowledge receipt of the dispute information in writing to Customer. All parties agree to work cooperatively to resolve any such disputed amounts. If the Customer fails to provide Wellhire with a notice of such a disputed amount within twenty (20) business days following receipt of Wellhire’s invoice for such disputed charge, then such amount is deemed undisputed and due to Wellhire.

(c) Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Wellhire’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Wellhire free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Wellhire will be Customer’s sole responsibility, and Customer will, upon Wellhire’s request, provide Wellhire with official receipts issued by appropriate taxing authorities, or such other evidence as Wellhire may reasonably request, to establish that such taxes have been paid.

Confidential Information

(a) Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

(b) Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (ii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iii) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (iv) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Wellhire may collect aggregated statistical data regarding Customer’s use of the Services and provide such aggregated statistical data to third parties.

(c) Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

Representations and Warranties

Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. Customer represents and warrants that it will use Service Information only as a component (and not the sole or predominant factor) in any hiring or employment termination decision or action. “Service Information” means information that is the result of any analysis or processing by Wellhire or is provided to Customer by Wellhire.

Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES PERFORMED BY WELLHIRE ARE PROVIDED “AS IS,” AND WELLHIRE DISCLAIMS ANY AND ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. WELLHIRE DOES NOT WARRANT THAT ANY SERVICES PROVIDED BY WELLHIRE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

Limitations of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WELLHIRE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF WELLHIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF WELLHIRE TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) FIFTY DOLLARS ($50) AND (B) TOTAL AMOUNT OF ALL FEES PAID TO WELLHIRE DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO EITHER PARTY’S OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY) OR SECTION 10 (INDEMNIFICATION).

Essential Basis of the Agreement

Customer acknowledges and understands that the disclaimer and limitations of liability set forth in Sections 7 and 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimer and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

Indemnification

(a) By Wellhire. Wellhire agrees to defend Customer against any and all claims by any third party that the Services infringe or misappropriates such third party’s intellectual property rights and pay any damages awarded therefore or settlement amounts therefore that are agreed by Wellhire, provided that Customer promptly notifies Wellhire in writing of the claim, cooperates with Wellhire, and allows Wellhire sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Wellhire, at Wellhire’s sole discretion, to enable it to continue to use the Services, or to modify or replace any such infringing material to make it non-infringing. If Wellhire determines that none of these alternatives is reasonably available, Wellhire may terminate the services that are the subject of the infringement claim. This Section shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Services by Customer, or (ii) combination, operation or use of the Services with other software, hardware or technology not provided by Wellhire, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”).

(b) By Customer Customer agrees to defend Wellhire against any claim based on a Customer Indemnity Responsibility or any Customer use (including hiring and firing decisions) of any output (including Candidate Profiles) from any Services, and pay any damages awarded therefore or settlement amounts agreed by Customer, provided that Wellhire promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim, and provided further that Customer will not settle any third-party claim against Wellhire unless such settlement completely and forever releases Wellhire from all liability with respect to such claim or unless Wellhire consents to such settlement, and further provided that Wellhire will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

Term and Termination

(a) Term. The term of this Agreement will commence on the Effective Date and will continue for as long as Customer is using the Services (the “Term”).

(b) Termination for Breach. If a Party breaches any material term, condition, or obligation of this Agreement, the non-breaching Party may terminate if the breaching Party fails to cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching Party.

(c) Termination for Convenience Wellhire may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other Party. Customer may terminate this Agreement for convenience at any time by visiting Customer’s account page and canceling Customer’s account.

(d) Effect of Termination Upon any termination of this Agreement, Customer will (i) immediately discontinue all use of the Services and any Wellhire Confidential Information; and (ii) promptly pay to Wellhire all amounts due and payable under this Agreement. Within thirty (30) business days after the effective date of any termination of this Agreement, Wellhire shall make available to Customer a comma-separated text file of Customer Content. After such thirty (30) day period, Wellhire shall have no obligation to maintain or provide any Customer Content to Customer.

(e) Survival. The provisions of Sections 2(d), 2(f), 6 - 12 will survive any termination of this Agreement.

(f) Suspension of Services If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof, Wellhire shall have the right, in addition to any of its other rights or remedies, to suspend the Services to Customer, without liability to Customer until such amounts are paid in full.

Miscellaneous

(a) Entire Agreement This Agreement, when read together with Wellhire’s Terms of Use Agreement, sets forth the entire agreement between the Parties and supersedes in its entirety any and all oral or written agreements previously existing between Customer and Dispersive Technologies with respect to the subject matter hereof. In the event that here is a conflict between this Agreement and the aforementioned Terms of Use, this Agreement shall prevail. This Agreement may only be amended or modified by a writing signed by both Parties.

(b) Independent Contractors In making and performing this Agreement, Customer and Wellhire act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.

(c) Notices All notices or other communications required by or relating to this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt.

(d) Assignment; Delegation This Agreement, and Customer’s rights and obligations herein, may not be assigned by Customer without Wellhire’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Wellhire may assign this Agreement in its discretion.

(e) No Third Party Beneficiaries The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

(f) Severability; Waiver If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(g) Force Majeure Except with respect to payment obligations hereunder, neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of such Party, provided, however, that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

(h) Governing Law and Dispute Resolution This agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, consistent with the Federal Arbitration Act, without regard to its conflicts of law principles or to the United Nations Convention on the International Sale of Goods. In the event of a dispute, each party will designate a representative (each a “Representative”) to meet in good faith to settle any dispute arising under or related to this Agreement. The Representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) either party concluding that resolution through continued negotiation does not appear likely; or (ii) the passage of thirty (30) calendar days since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief. If such dispute remains unsettled for more than thirty (30) days after either party gives the other written notice thereof, then such dispute shall be submitted to the American Arbitration Association (“AAA”) in Denver, Colorado for arbitration pursuant to the AAA’s then current rules of commercial arbitration. THE PARTIES AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Denver County, Colorado and you and Wellhire consent to the exclusive jurisdiction of the courts in Denver County, Colorado. Notwithstanding the foregoing, either party may go directly to court to file for interim, equitable, or other relief in connection with confidentiality or intellectual property matters.

(i) U.S. Government End-Users. Each of the software components that constitute the Services are a “commercial item” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.