This MASTER SERVICES AGREEMENT (“MSA”) is made and entered into by and between NightOwl Consulting Philippines, Inc, a Delaware corporation, with its principal office address at 8 The Green Suite # 13648, Dover DE 19901 (hereinafter referred to as “NOC” or “Service Provider”), and you, the Client (“Client” or “you”). NOC and Client are sometimes referred to herein individually as a “Party” and collectively referred to as the “Parties”.

NOC provides the Services using personnel employed in the Republic of the Philippines, in the Republic of Colombia, or in both. This MSA applies to all such personnel. This MSA remains an agreement between the Client and a United States entity, governed by the laws of the State of Delaware.

NOW, THEREFORE, for and in consideration of the foregoing premises, the Parties agree as follows:

1. DEFINITIONS

a. “Personnel” means the employees assigned by the Service Provider to the Client to perform the Services under this MSA, in whichever Personnel Jurisdiction they are employed.

b. “Personnel Jurisdiction” means the country in which particular Personnel are employed by the Service Provider, or by an affiliate or branch of the Service Provider. As of the date of this MSA, the Personnel Jurisdictions are the Republic of the Philippines and the Republic of Colombia.

c. “Philippine Personnel” means Personnel whose Personnel Jurisdiction is the Republic of the Philippines. “Colombian Personnel” means Personnel whose Personnel Jurisdiction is the Republic of Colombia.

d. “Statutory Employment Costs” means all amounts the Service Provider is required by the law of a Personnel Jurisdiction to pay to or in respect of Personnel employed there, including mandatory bonuses and allowances, severance or separation savings funds and interest on them, statutory leave accruals, employer social security, health, pension and occupational risk contributions, payroll levies, and mandatory shift, night or holiday premiums.

e. “Termination Costs” means all amounts payable to or in respect of Personnel on cessation of employment as required by the law of their Personnel Jurisdiction, together with reasonable external legal costs incurred by the Service Provider in effecting a compliant termination that the Client has approved in advance in writing.

f. “Protected Personnel” means Personnel whose employment cannot lawfully be terminated under the law of their Personnel Jurisdiction without the prior authorization of a competent judicial or administrative authority.

g. “Cost Estimate Addendum” means a written instrument executed by the Parties in respect of one or more Personnel setting out the applicable salary, fees, charges, Personnel Jurisdiction, shift window and related commercial terms. Each Cost Estimate Addendum supplements this MSA.

h. “Order Form” means the Initial Order Form executed by the Client, and any subsequent order form executed by the Parties.

i. “TRM” means the Tasa Representativa del Mercado for COP/USD certified and published by the Superintendencia Financiera de Colombia.

j. “BSP Rate” means the rate of exchange for the applicable currency published by the Bangko Sentral ng Pilipinas.

2. SERVICES

a. Client is engaging NOC to provide the services as described in the Order Form or under this MSA and/or as further described herein. The Order Form and Cost Estimate Addendum(s) (including Schedule A attached thereto), together with this MSA, form the entire agreement that applies to the Services.

b. Please refer to Exhibit A below for the Schedule of Services.

c. The Services may be performed by Personnel in any Personnel Jurisdiction. The applicable Cost Estimate Addendum identifies the Personnel Jurisdiction for the Personnel to which it relates.

3. TERM

a. This MSA is effective as of the Effective Date of the Order Form and shall remain in full force and effect until terminated in accordance with, and pursuant to, any of the provisions in Section 13 below; provided that this MSA may not be terminated unless and until all Schedule of Services have expired or have been terminated according to their terms.

4. RELATIONSHIP

a. The Service Provider’s relationship with the Client is that of an independent contractor. Nothing in this MSA is intended, or should be construed, to create a partnership, agency, joint venture, or employment relationship between the Parties.

b. Neither Party is authorized to make any representation, contract, or commitment to a third party on behalf of the other.

c. Personnel shall, at all times, be considered the employees of the Service Provider, which exercises the sole right of control and supervision over their performance. This is so in every Personnel Jurisdiction. The Client does not hire, employ, co-employ, direct the means and methods of work of, discipline or terminate any Personnel, and nothing in this MSA or in the Parties’ course of dealing shall be construed to make the Client an employer, joint employer, co-employer or labor intermediary of any Personnel.

d. Where the Client participates in selecting among candidates presented by the Service Provider, that participation is a commercial preference as to fit and does not alter Section 4(c). The Service Provider alone decides whom to employ, on what terms, and whether and when to discipline or end that employment.

e. The Service Provider shall be fully responsible for its employees including but not limited to:

i. Providing and ensuring safe and healthy working conditions;

ii. Payment of wages and benefits;

iii. Compliance with all employment, labor laws, wage and hour and any similar laws of the applicable Personnel Jurisdiction, and any similar laws applicable to the Service Provider and to any subcontractor in the provision of services hereunder.

f. From time to time, when Client wishes to engage Service Provider to fill any positions with Service Provider personnel, Client will execute a Cost Estimate Addendum that will specify the Personnel Jurisdiction, additional personnel costs and other expenses related to the requirements of the Client. Each new addendum will supplement this MSA.

5. GENERAL COVENANTS RELATING TO THE SERVICES

a. Personnel.

i. The Service Provider commits to assign Personnel to the Client best suited for the positions expressed in the Cost Estimate Addendum based on the employees’ education, trainings, skill sets and working experiences.

ii. The Client shall have direct access to Personnel for purposes of, among others, supplementary trainings, meetings, discussions, and reasonable requests in the performance of their assigned tasks.

iii. Service Provider will be responsible for the individual time logs for recording actual attendance of Personnel and Service Provider will ensure that Personnel are engaged through the execution of a formal employment contract outlining both parties’ obligations, including an obligation for Personnel to comply with Client’s policies and procedures (except to the extent that same may be contrary to the laws of the applicable Personnel Jurisdiction).

iv. Service Provider will:

1. comply with all laws, rules, and regulations pertaining to labor and employment as may be applicable in the applicable Personnel Jurisdiction;

2. pay all wages, salaries, and other benefits, as may be applicable, agreed, or necessary;

3. comply with all statutory obligations in respect to taxation, fringe benefits tax, other withholdings, imposts and obligations.

v. The Client agrees that the Service Provider will not be liable for any losses or damages suffered or claimed by the Client or any third party which arise from the performance (or lack thereof) of the Personnel assigned to it which are due to inadequate instructions and/or directions provided by the Client or a failure by the Client to provide appropriate (or any) instructions and/or directions to the Personnel concerned, provided that, there is no fraud, gross negligence or willful misconduct on the part of the Personnel concerned that is the immediate cause of such loss or damage.

vi. Any issues or concerns with Personnel shall be directed through the Service Provider and the Service Provider has the sole right to discipline, suspend, and terminate any employee.

vii. Where the Client requests the removal or replacement of Personnel on grounds of performance or conduct, the Client shall provide the Service Provider with the factual record supporting those grounds. The Service Provider shall advise the Client of the documentation required under the law of the applicable Personnel Jurisdiction to support a termination for cause, and shall determine whether a termination for cause is legally sustainable on the record provided. Where the Service Provider determines, acting reasonably, that the record does not support a termination for cause under that law, the resulting termination is a termination without cause for the purposes of Section 7.

b. Working Hours and Shift Premiums. The applicable Cost Estimate Addendum sets out the shift window for the Personnel to which it relates. Where the law of a Personnel Jurisdiction imposes a premium on hours worked within a defined night window, on rest days or on public holidays, that premium is a Statutory Employment Cost and is charged in accordance with Section 7. Maximum weekly working hours, night windows and premium rates differ between Personnel Jurisdictions and are subject to change by law.

c. Data Privacy Laws. The Parties shall comply with the provisions of all data privacy laws, as applicable, including those of each applicable Personnel Jurisdiction. Each Party will ensure that its systems, processes, and policies are, and will remain, compliant with the provisions of all applicable data privacy laws.

d. Reports. The Service Provider shall prepare reports and other materials as specified in Schedule “A”, if there be any, and as otherwise reasonably requested by the Client from time to time.

e. Financial Information. The Service Provider shall immediately notify the Client in writing of any event or condition that a reasonable person operating a business for profit would determine will result, or is likely to result, in a material adverse change to the solvency, financial condition or business operations of the Service Provider.

6. FEES

a. In consideration of the Service Provider performing its obligations herein, the Client shall pay the Service Provider the undisputed fees and charges as specified under the invoice issued to Client within thirty (30) calendar days from date of receipt of the invoice.

b. Estimated fees shall be set forth under the Cost Estimate Addendum, which shall be prepared for Client upon the execution of the Order Form or any applicable Cost Estimate Addendum(s).

c. A salary deposit may be collected from Client, as specified under the Cost Estimate Addendum.

d. The Client shall, within five (5) business days from receipt of the invoice, notify the Service Provider in writing of any inaccuracy thereof, failing which, the invoice shall be deemed accurate and valid after the lapse of the five (5) business day period. In case of a timely dispute on the invoice, such amounts not subject of the dispute shall be due and demandable in accordance with Section 6(a) above.

e. Once the disputed amounts have been cleared, they shall be due and payable within the 30-day period in Section 6(a) above, provided that, if the dispute is resolved beyond the 30-day period, then they shall be due and payable within ten (10) business days from resolution of the dispute.

f. Any past due amount is subject to a 2% penalty per month until fully paid. The Client’s failure to pay undisputed amounts also gives rise to the rights set out in Section 13(c) and Section 13(d).

g. All payments under this MSA shall be payable in U.S. Dollars (USD). Where conversion from a foreign currency is required, the applicable rate is the BSP Rate for amounts denominated in Philippine Pesos and the TRM for amounts denominated in Colombian Pesos, in each case taken as the weighted average for the relevant period. To avoid volatility, once an exchange rate is set, it shall remain fixed for the applicable quarter. Notwithstanding the foregoing, if an applicable exchange rate changes against the U.S. Dollar by 5% or more, the Service Provider reserves the right to renegotiate that exchange rate for the remainder of that quarter. Each applicable rate is set and renegotiated separately.

h. Mandatory changes in law. Where a change in the law or regulation of a Personnel Jurisdiction makes a modification to the fees or charges mandatory, the Service Provider shall notify the Client of the change within thirty (30) calendar days of knowledge thereof, and the modification takes effect from its statutory effective date. Such changes include a change in statutory minimum wage, mandatory allowances, employer contribution rates, premium rates, or working-time limits. The Service Provider shall provide the Client reasonable supporting documentation substantiating any mandatory increase. Any such increase shall be limited to the Service Provider’s actual incremental cost, without markup.

7. STATUTORY EMPLOYMENT COSTS AND TERMINATION COSTS

a. Pass-through. Statutory Employment Costs for Personnel assigned to the Client are charged to the Client at the Service Provider’s actual cost, without markup, as set out in the applicable Cost Estimate Addendum. Statutory Employment Costs differ materially between Personnel Jurisdictions. The Cost Estimate Addendum for Personnel in a given Personnel Jurisdiction itemizes the components applicable there.

b. Accrual. The applicable Cost Estimate Addendum may provide for a monthly accrual toward Termination Costs for each Personnel. Any accrual collected is applied against Termination Costs when they arise and is otherwise credited to the Client.

c. Client-initiated terminations. Where the Client recalls, withdraws or cancels a position held by Personnel, or where this MSA or any Cost Estimate Addendum is terminated by the Client for convenience or expires without renewal, and the Service Provider is unable to redeploy the affected Personnel after using commercially reasonable efforts to do so, the Client shall pay the amount by which the actual Termination Costs exceed the accrual collected in respect of those Personnel, provided such Termination Costs are legally required and supported by reasonable documentation.

d. Exclusions. The Client shall have no responsibility for Termination Costs arising from or relating to: (i) the Service Provider’s termination of Personnel for performance, misconduct or other cause, except where Section 5(a)(vii) applies; (ii) the Service Provider’s breach of applicable employment or labor laws; (iii) the Service Provider’s negligent or wrongful acts or omissions as employer; (iv) the Service Provider’s voluntary termination or restructuring of its own workforce; or (v) termination of this MSA by the Client due to the Service Provider’s uncured material breach.

e. Termination for the Client’s non-payment. Where the Service Provider terminates this MSA or any Cost Estimate Addendum under Section 13(c)(iii), the Client remains liable for Termination Costs in respect of the affected Personnel on the same basis as under Section 7(c). The exclusion in Section 7(d)(iv) does not apply to a termination under Section 13(c)(iii).

f. Billing and documentation. Termination Costs are billed at the Service Provider’s actual, documented cost, without markup, following the Service Provider’s payment of the applicable amounts, and may be invoiced in tranches as amounts are paid. Each invoice shall identify the applicable statutory requirement and calculation. Amounts are payable whether or not the Client solicits or employs the affected Personnel.

g. Mitigation. The Client is not responsible for Termination Costs to the extent they could reasonably have been avoided or mitigated by the Service Provider. For this purpose, avoidable costs include penalties or interest arising from late payment of final wages or settlement amounts, costs arising from the Service Provider’s failure to follow the process required by applicable law, and legal fees or expenses that are unreasonable in amount. Amounts mandated by the law of the applicable Personnel Jurisdiction are not treated as avoidable or mitigable, except to the extent they could have been avoided by redeployment.

h. Redeployment. Redeployment of affected Personnel to another client of the Service Provider is the principal means by which Termination Costs are avoided, and the Service Provider shall use commercially reasonable efforts to achieve it. The Client’s consent to a redeployment is required only where the proposed redeployment is to a competitor of the Client or to an account at which the Client’s Confidential Information could reasonably be placed at risk. No consent is required for any other redeployment. Consent shall not be unreasonably withheld, conditioned or delayed, and is deemed given if the Client does not respond within five (5) business days of a written request.

8. PAID TIME OFF AND STATUTORY LEAVE

a. Company Paid-Time-Off is included in the monthly fee and continues to apply to paid time off taken by Personnel as time away from work.

b. Where the law of a Personnel Jurisdiction requires payment in cash for accrued and unused paid time off or statutory leave, whether on cessation of employment or otherwise, the Client shall pay that amount. The Service Provider shall charge only the minimum amount required by that law, at actual cost and without markup, on the invoice following the month in which the obligation arises, and shall provide a calculation of the amount claimed.

c. Any excess paid time off of Philippine Personnel that can be paid out after December 31st of the year is the responsibility of the Client and payable on the January invoice.

d. No amount is chargeable under this Section 8 to the extent the same amount has already been charged to the Client as part of Termination Costs under Section 7.

9. OWNERSHIP OF WORK PRODUCT

a. The Service Provider acknowledges and agrees that any products or materials specifically produced or created by Personnel because of work undertaken for the Client (“Work Product”) will be the Client’s property immediately upon the production or creation of the Work Product. The Service Provider shall ensure that each Personnel’s employment contract assigns or otherwise vests such rights as required to give effect to this Section, in the form required by the law of the applicable Personnel Jurisdiction.

b. The Client warrants that it owns or fully licenses all the materials it provides the Service Provider to use on its behalf and has the right to provide such materials to the Service Provider for use.

c. Each Party shall use the other Party’s products, materials, Systems Applications, Technical, and Procedural Documentation only for purposes of the fulfillment of its duties and obligations under this MSA. Neither Party shall reverse-engineer, sell or encumber the other Party’s products, materials, Systems Applications and Technical and Procedural Documentation for any reason or purpose.

10. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants to, and for the benefit of the other Party upon execution:  

a. It is validly formed, existing and in good standing under the laws of the country or state wherein its principal office or any of its branches, if there be any, is located, and it is duly licensed or qualified to carry on its present business operations. The Service Provider further represents that it, or an affiliate or branch of it, is duly registered and authorized to employ personnel in each Personnel Jurisdiction in which it assigns Personnel to the Client.

b. This MSA has been duly authorized, executed and delivered and constitutes legal, valid, and binding obligations enforceable against it in accordance with its respective terms and conditions.

c. It shall comply in all material respects with applicable federal, state, local and foreign law or other applicable authority related to the performance by it of its obligations under this MSA.

11. CONFIDENTIALITY

a. For purposes of this MSA, “Confidential Information” means any information: (i) designated as confidential, either marked in writing where possible, or identified as such and confirmed in writing, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; or (ii) which relates to a Party’s business affairs, clients, trade secrets, technology, research and development, or pricing.

b. The terms and conditions of this MSA shall also be deemed Confidential Information.

c. Both Parties shall: (1) maintain as confidential and shall not disclose, copy, share with other external parties, nor use for purposes other than the performance of their duties and obligations under this MSA, any Confidential Information of the other Party; (2) protect the Confidential Information of the other Party with the same degree of care it exercises to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof; and (3) shall limit the use of, and access to, such Confidential Information of the other Party to their respective personnel whose use or access is necessary to effect the purpose of this MSA and who have executed confidentiality agreements substantially equivalent to the terms hereof.

d. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. The existence and terms of this MSA may not be disclosed by either party except as required: (i) by applicable law; (ii) by its auditors, internal examiners, or government regulators; or (iii) to establish such party’s rights under this MSA, including to make such court filings as it may be required to do. Notwithstanding the foregoing, either party may disclose the existence and terms of this MSA to its affiliates, successors and assigns, and any other party that is under an obligation of confidentiality to such party.

e. Upon the expiration or termination of this MSA, the receiving party will return to the disclosing party or destroy all Confidential Information of the disclosing party in the receiving party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly. Upon the request of the disclosing party, the receiving party will certify in a writing signed by an officer of the receiving party that it has fully complied with its obligations under this Section 11.

12. INDEMNIFICATION

a. Unless due to the gross negligence or willful misconduct of the other party, each party indemnifies and holds the other, its directors, officers and representatives, free and harmless, from and against any and all losses, damages, liabilities, actions, suits, proceedings and claims of whatever nature, including attorney’s fees or other expenses incurred, brought about by claims or charges from any individual, corporate entity, organizations, government agencies and instrumentalities or any other interested party, due to any act or omission or breach of any obligation in this MSA, or the fault or negligence of a party, its directors, officers, representatives, employees, authorized representatives, contractors, and the Personnel, when undertaking to perform instructions from the other, whether in relation to the terms of this MSA or not.

b. Client agrees to indemnify Service Provider, and its directors, officers and representatives, free and harmless, from and against any and all losses, damages, liabilities, actions, suits, proceedings and claims of whatever nature, including attorney’s fees or other expenses incurred, brought about by claims or charges from any individual, corporate entity, organizations, government agencies and instrumentalities or any other interested party, arising in any way as a result of instructions and/or directions provided by Client to Personnel, or a failure by Client to provide appropriate (or any) instructions and/or directions to Personnel.

c. Nothing in this Section 12 requires the Client to indemnify the Service Provider against a claim by Personnel that arises from the Service Provider’s own conduct as employer, and nothing in it requires the Service Provider to indemnify the Client against amounts the Client is expressly obliged to pay under Section 7 or Section 8.

13. TERMINATION

a. Subject to Section 3(a), either party may terminate this MSA without cause, after one (1) year from the Effective Date hereof (“Initial Term”), upon written notice to the other party at least ninety (90) calendar days prior to the effective date of termination, provided that all Personnel’s employment has been ended by the same period. Section 13(e) governs where it has not.

b. In the event of a breach by one Party of any of the provisions of this MSA, the other Party may terminate this MSA with cause upon written notice to the other Party at least thirty (30) calendar days prior to the effective date of termination, provided that, the breaching Party has been informed in the same written notice of such breach and was given an opportunity to cure the breach but failed to do so within the 30-day period. If the breaching Party is able to cure such breach to the satisfaction of the non-breaching Party, the terms of the MSA shall continue unaffected and the notice of termination for cause shall be deemed automatically rescinded. This Section 13(b) does not apply to a breach described in Section 13(c).

c. Either Party may terminate this MSA upon written notice to the other Party effective immediately:

i. Upon knowledge of the other Party’s liquidation, bankruptcy, or insolvency;

ii. In case of a material breach of this MSA that is considered by the non-breaching Party as incurable and that unless this MSA is terminated, such breach or continuing breach will cause irreparable loss and damage to the non-breaching Party; or

iii. By the Service Provider, where the Client has failed to pay any undisputed amount on or before its due date and that amount remains unpaid seven (7) calendar days after the Service Provider has given written demand for it. The Client’s failure to pay an undisputed amount when due is a material breach of this MSA. The thirty (30) day cure period in Section 13(b) does not apply to such a breach. The seven (7) day period in this Section 13(c)(iii) is the only cure period afforded, and upon its expiration the Service Provider may terminate immediately upon written notice. An amount is “undisputed” if the Client has not disputed it in writing within the period allowed by Section 6(d).

d. Suspension for non-payment. In addition to and without limiting Section 13(c)(iii), where any undisputed amount remains unpaid on or after its due date, the Service Provider may, upon written notice and without liability to the Client, suspend all or any part of the Services, including withdrawing Personnel from the Client’s work, until all such amounts are paid in full. Suspension does not relieve the Client of any payment obligation, does not extend any due date, does not pause the accrual of fees and charges, and is not a waiver of the Service Provider’s right to terminate under Section 13(c)(iii). The Service Provider may exercise this right whether or not it also terminates.

e. Personnel whose employment cannot be ended within the notice period.

i. Where the Service Provider is unable, notwithstanding commercially reasonable efforts, to end the employment of Personnel within the applicable notice period as a result of a requirement of the law of their Personnel Jurisdiction, termination nevertheless becomes effective upon expiration of that notice period, and the Client’s obligation to pay recurring salary, fees, charges and other monthly amounts for those Personnel ceases as of that date. Any amounts payable by the Client thereafter are limited to Termination Costs payable under Section 7.

ii. Section 13(e)(i) does not apply to Protected Personnel. As to Protected Personnel, the Client’s obligation to pay recurring salary, fees, charges and other monthly amounts continues until the earliest of (1) their redeployment, (2) the required authorization being obtained, (3) the cessation of their employment, or (4) the date six (6) months after the effective date of the Client’s notice of recall, withdrawal, cancellation or termination, after which the Client shall have no further obligation to pay such amounts. The Service Provider shall pursue any required authorization promptly, shall use all commercially and practically reasonable efforts to redeploy such Protected Personnel to another client of the Service Provider, and shall keep the Client reasonably informed of the status of both.

iii. The condition in Section 13(a) is satisfied notwithstanding the continued employment of Protected Personnel, and termination of this MSA is otherwise effective as to all other Personnel in accordance with Section 13(a).

f. Survival Rights. The termination of this MSA shall not release any Party of its obligations to:

i. Pay any sum accrued as of the effective date of termination and therefore already owed to the other Party, whether or not it has been billed;

ii. Pay Termination Costs and any other amounts payable under Section 7 or Section 8, which arise on or after termination; and/or

iii. Perform any other duty or discharge any other liability incurred prior to the effective date of termination.

14. FORCE MAJEURE

Except for payment obligations due and demandable, neither Party shall be liable in any way for any loss, damage, delay, or failure of performance resulting directly or indirectly from any cause which is beyond its reasonable control, including but not limited to fire, explosion, lightning, pest damage, power surges or failures, strikes or labor disputes, water, insurrections, epidemics, pandemics or quarantine orders, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, transport strikes, acts or omissions of communications carriers, or any other cause beyond either Party’s control whether or not similar to the foregoing. If such delay or failure continues for a period of more than 30 days, the party not subject to the force majeure will be entitled to terminate this MSA by written notice to the other. A force majeure event affecting one Personnel Jurisdiction does not excuse performance in respect of Personnel in another Personnel Jurisdiction.

15. DISASTER RECOVERY

The Service Provider shall provide industry-acceptable backup procedures to continue operation in the event of catastrophic events that cause business interruptions. The Service Provider shall use commercially reasonable efforts at its own cost to resume business operations in the event of such a disaster as soon as reasonably possible.

16. GENERAL LIMITATION ON LIABILITY

NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF GOODWILL, LOST PROFITS, LOSS OF REVENUE, LOSS OF EXPECTED SAVINGS, OPPORTUNITY COSTS, LOSS OF BUSINESS, LOSS OF REPUTATION AND BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR TORT (INCLUDING NEGLIGENCE).

OTHER THAN AN OBLIGATION TO PAY ANY AMOUNT DUE PURSUANT TO THIS AGREEMENT, INCLUDING FEES AND CHARGES UNDER SECTION 6 AND AMOUNTS PAYABLE UNDER SECTION 7 AND SECTION 8, IN NO EVENT WILL A PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID OR PAYABLE BY THE CLIENT HEREIN IN ANY TWENTY-FOUR (24) MONTH PERIOD. THIS LIMITATION OF EACH PARTY’S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.

17. GENERAL PROVISIONS

a. Notice. All notices required under this Agreement shall be in writing and sent to the addresses and persons set forth below, or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when: (i) delivered personally; or (ii) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.

If To Service Provider:

Addressee: NightOwl Consulting Philippines Inc.

Attention: Agreement Notification

Address: 8 The Green Suite #13648, Dover, DE 19901

Email: founders@nightowl.consulting

If To Client:

  To the address Client provided on the Order Form.

b. Assignment. Neither Party shall, directly or indirectly, sell, transfer, or assign any or all of its rights or delegate performance of any of its obligations under this MSA to a third party, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Unless terminated by either Party by reason thereof, this MSA is deemed transferred or assigned without need of consent by the other Party: (i) in connection with a merger, corporate reorganization or sale of all or substantially all of its assets, stock or securities; or (ii) to any entity which is a successor to the assets or the business of such Party, provided that, in the case of the Client, the Client has fully settled all of its payment obligations hereunder prior to the effectivity of such transfer or assignment, failing which, the transfer or assignment shall require the Service Provider’s prior written consent.

c. Affiliates and Branches. The Service Provider may perform its obligations under this MSA through an affiliate or branch, including an affiliate or branch established in a Personnel Jurisdiction for the purpose of employing Personnel there. The Service Provider remains fully responsible to the Client for performance of this MSA, and no such arrangement is a transfer or assignment for the purposes of Section 17(b).

d. No Third-Party Beneficiaries. Nothing in this MSA is intended and therefore shall be construed to confer on any person or entity, other than the Parties herein, any rights, benefits, or remedies under or by reason of this MSA except in accordance with Section 17(b). For the avoidance of doubt, Personnel are not third-party beneficiaries of this MSA.

e. Anti-Poaching Provision. During the Term of this MSA and one (1) year thereafter, the Client agrees not to (a) solicit, whether directly or indirectly, any employee of the Service Provider assigned to it for purposes of direct employment with the Client, or (b) actually employ directly, through a similar service provider or through any of its “Affiliates” (defined below). In the event of a violation by Client of this section, Client shall pay a “Recruitment Fee,” defined as the equivalent of twenty-five percent (25%) of the hired subject employee’s annual basic salary. For purposes of this MSA, an Affiliate of either Party shall mean any person or entity which Client or Service Provider, as applicable, directly or indirectly, through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with.

f. Entire MSA. This MSA including all Schedules attached hereto and made integral parts hereof and any future Cost Estimate Addenda, which shall be incorporated herein, constitute the entire agreement between the Parties and shall govern, among others, their relationship, duties and responsibilities, rights and obligations, and liabilities. It is expressly agreed and understood that there are no verbal agreements or understanding between the Parties or any of their agents or representatives affecting this MSA.

g. Multiple Counterparts. This MSA may be executed in multiple counterparts, each of which shall be deemed an original, but all of which collectively shall constitute one and the same instrument.

h. Amendments. No amendments, revisions, modifications, alterations and/or variations of this MSA shall be valid and binding upon any Party unless entered into by a subsequent written agreement executed by the duly authorized representatives of both Parties.

i. Applicable Law. This MSA shall be governed by, construed, and interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws rules except and to the extent that the laws of the state are preempted by applicable federal law. The engagement of Personnel in any Personnel Jurisdiction does not subject this MSA to the law of that jurisdiction. The law of a Personnel Jurisdiction governs only the employment relationship between the Service Provider and Personnel employed there, and is relevant under this MSA solely in determining what that law requires of the Service Provider as employer.

j. Dispute Resolution. The Parties must use their best endeavors to resolve any substantial dispute or claim arising out of the subject matter of this MSA or its performance, excepting a dispute or claim by Service Provider in relation to an overdue invoice, which has not been previously disputed by Client. A Party may at any time give the other Party written notice of a dispute. The other Party shall promptly acknowledge receipt of the notice and will provide a response within a reasonable time, but not later than thirty (30) days. Correspondence must each include a clear summary of arguments supporting the position, and what action (if any) that Party thinks will resolve the dispute. The Parties will engage in good faith business-to-business negotiations to resolve the dispute; provided that, should such negotiations fail, the Parties may pursue litigation, as provided herein. Nothing in this Section 17(j) limits the Service Provider’s rights under Section 13(c)(iii) or Section 13(d).

k. Venue and Jurisdiction. The Parties hereby agree that any suit, action or proceeding, or any legal action arising out of or in relation to this MSA shall be brought before the sole and exclusive jurisdiction of the federal and/or state courts of the State of Delaware. Notwithstanding the foregoing or anything else expressed or implied in this MSA, either Party may, at any time, seek injunctive or other equitable relief, wherever such Party deems appropriate, to protect or enforce such Party’s rights hereunder.

l. Attorneys’ Fees and Costs. In the event of any litigation between the Parties arising out of or in relation to this MSA, each Party shall bear its own attorneys’ fees and costs, regardless of the litigation outcome or whether it proceeds to final judgment or determination.

m. Severability. If any provision of this MSA is held by the proper court to be invalid or unenforceable, such invalidity will not affect the remaining provisions which shall be interpreted so as best to affect the intent of the Parties herein.

n. No Waiver of Rights. No provision of this MSA shall be deemed waived by any Party unless such waiver is in writing and signed by both Parties’ duly authorized representatives. The failure or delay to exercise any right provided in this MSA shall not be deemed a waiver thereof nor shall any single or partial exercise of any other right preclude any further exercise of such right.

EXHIBIT A – SCHEDULE OF BASIC SERVICES

Services

During the term of this MSA, the Service Provider agrees to provide the following administrative services for the Client as defined by the Client. The following is a list of potential key activities and tasks to be performed by the Service Provider, but the Client has the right to re-define, prioritize, eliminate, and replace them with other similar activities. The Client is responsible for the training of the Service Provider’s resources to deliver on these administrative services.

Personnel Type

1. Dynamic Branch Support (“DBS”): Recruitment, Hiring, Onboarding, HR & Payroll, Role Specific Training, Ongoing Employee Development, Ongoing Client Support. DBS employees work with mortgage branches and/or loan officers to directly support mortgage activities.

2. Strategic Operations Support (“SOS”): Recruitment, Hiring, Onboarding, HR & Payroll, Ongoing Client Support. SOS employees work directly with clients to support their business activities, without the direct involvement of the NOC Corporate team.

Either Personnel Type may be staffed from any Personnel Jurisdiction. The applicable Cost Estimate Addendum identifies the Personnel Jurisdiction, the shift window, and the statutory cost components applicable to that jurisdiction.

Key Activities

1. Talent Sourcing: Identifying potential candidates through various channels like job boards, LinkedIn, industry events, and referrals.

2. Screening and Assessment: Evaluating candidates’ skills, experience, and fit for the role through interviews, skill assessments, and background checks, in each case as permitted by the law of the applicable Personnel Jurisdiction.

3. Client Needs Analysis: Understanding the Client’s specific needs, including the roles to be filled, company culture, and specific industry requirements.

4. Candidate Presentation: Presenting the best-fit candidates to the Client with detailed profiles and assessment results.

5. Interview Coordination: Arranging interviews between the Client and selected candidates, and providing feedback to both parties.

6. Labor Compliance and Onboarding: Ensuring compliance with the employment and labor laws of the applicable Personnel Jurisdiction and with industry regulations, and facilitating the onboarding process for new hires.

7. Post-placement Support: Providing ongoing support to both the Client and the placed candidates to ensure a successful relationship.