Exhibit 10.38


 








 


PROFESSIONAL SERVICES AGREEMENT


 







THIS
Agreement ("Agreement") is made this 7th day of June 2016 (the "Effective Date"), by and between
Resources Connection LLC, doing business as Resources Global Professionals, with its principal place of business at 17101 Armstrong
Avenue, Irvine, CA 92614, for itself and on behalf of all operating entities owned by its parent, Resources Connection, Inc. (collectively
"RGP"), and Ominto, Inc., with its principal place of business located at 1515 South Federal Highway, Suite 307, Boca
Raton, FL 33432 ("Client"), for the provision of personnel to perform professional services by RGP as more fully set
forth in the annexed Statement(s) of Services.


 


Any
Services, as defined below, requested subsequent to the Effective Date of this Agreement or individual amendments to the provisions
herein, will be set forth in additional Statements of Services, which will be agreed to and acknowledged, in writing, by both
parties.


 


	 	1.	Independent Contractor Status




 


RGP
is an independent contractor of Client, and the persons provided hereunder by RGP to Client are RGP's employees, or, in certain
circumstances, independent contractors who have contracted with RGP ("Consultants"). RGP will notify Client affirmatively
in the applicable Statement of Services if such Consultant is an independent contractor.


 


	 	2.	Performance of Services




 


RGP
will provide Client with Consultants to perform professional services on a project or engagement basis
("Services"). A Statement of Services will summarize the scope of the engagement and any special services
provisions. Client is responsible for defining the scope and nature of the Services, providing overall direction to the
Consultants, and managing the projects and engagements under this Agreement. As such, Client agrees to permit the Consultants
to take all statutorily required meal and other break periods as well as to provide a safe working environment and reasonable
working space and materials to the Consultants which may be necessary in connection with the performance of Services
hereunder. Except as otherwise agreed in a Statement of Services, Consultants will not have the authority to act as
an officer or director of Client or to represent or obligate Client in any manner. The Services will not (i) constitute an
engagement to provide independent audit or attestation services; (ii) result in the issuance of any written or oral opinions
or other communications by RGP or its Consultants to Client or any third party expressing a conclusion or any form of
assurance with respect to financial data or internal controls; or (iii) result in the issuance of any written or oral
communications by RGP or its Consultants to Client or any third party expressing a conclusion of law or any form of legal
opinion.


 


	 	3.	Services Agreement




 


This
is a services agreement. RGP warrants it will perform its obligations hereunder in good faith. As Client will direct and
manage the Services provided hereunder, RGP makes no additional warranties, whether express, implied, statutory or otherwise
including, without limitation, warranties of merchantability, fitness for a particular purpose, quality, suitability or
otherwise with respect to any Services performed by its Consultants in connection with this Agreement, except as set forth in
Section 4 below.


 



     

     


    

 





 





	 	4.	Representations and Warranties




 


RGP
further represents and warrants as follows:


 


(a)         RGP will have sole responsibility to recruit, interview, qualify, select, hire or contract with, counsel, discipline, evaluate
and terminate the Consultants. RGP, at the request of Client for any reason that is not unlawful, will remove any of its Consultants
assigned to perform Services for Client. This in no way affects the right of RGP to contract with, assign and reassign its Consultants
or, in its sole discretion as employer, to hire and/or terminate the employment of its employees.


 


(b)         RGP will: (i) supply only individuals legally authorized to work in the United States; (ii) complete and maintain 1-9 forms in
compliance with the Immigration Reform and Control Act of 1986; (iii) conduct background checks to ensure its employees have no
felony convictions that would preclude Consultant's hiring during the seven years prior to employment by RGP, nationally and by
county of residence; (iv) maintain all necessary personnel and payroll records; (v) establish and calculate wages, benefits and
other remuneration; and (vi) calculate, withhold and remit applicable taxes, Social Security and other government-mandated charges
to the appropriate governmental entity.


 


(c)         Consultants have the capability, experience and means necessary to perform the Services in a diligent manner in accordance with
accepted professional practices. If such Services are not performed satisfactorily, Client will notify RGP, within ten (10) days
of Client's determination of such unsatisfactory performance, to replace the Consultant, re-perform the Services or negotiate
an appropriate credit, if any, of the fees incurred.


 


(d)         RGP will comply with all applicable federal, state, and local laws, rules, regulations, codes, ordinances and orders, including
but not limited to all laws and regulations applicable to Consultants. RGP and its Consultants have in effect and will maintain
in effect all permits, licenses, and other authorizations necessary for the performance of the Services.


 


(e)         RGP and its Consultants will observe Client's policies and practices as the same are disclosed, in writing, to RGP, including
without limitation, those policies and practices involving health, safety, the environment, and security, when working at or around
any of Client's facilities.


 



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	 	5.	Mutual Indemnification




 


Subject
to the limitations set forth in Section 6 below, RGP and Client (each an "Indemnifying Party") agree to indemnify
and hold harmless the other party and its affiliate, parent and subsidiary companies and including the officers, directors,
employees, and agents of all such companies, (the "Indemnified Party") from and against any and all third party
actions, losses, damages, claims, liabilities, costs or expenses (including, without limitation, court costs and reasonable
legal and professional fees) arising out of or relating to this Agreement and based on any negligent act or omission or
intentional misconduct of the Indemnifying Party or its agents that results in or causes: (a) bodily injury or death; (b) any
destruction of or damage to tangible property, or loss of use resulting therefrom; or (c) any violation of any statute,
ordinance or regulation, except to the extent finally determined to have resulted from the intentional misconduct or
negligence of the Indemnified Party. The Indemnifying Party's obligations hereunder are conditioned upon the Indemnified
Party providing the Indemnifying Party with: (i) prompt written notification of the claim; (ii) all reasonable information
and assistance, at the Indemnifying Party's expense, to defend or settle such a claim; and (iii) sole control of the defense
or settlement of such claim. Notwithstanding clause 5(iii) above, the Indemnified Party reserves the right to retain counsel,
at the Indemnified Party's expense, and to participate in the defense and settlement of any such claim. The provisions of
this paragraph shall survive the completion or termination of this Agreement.


 


	 	6.	Limitations of Liability




 


Notwithstanding
any other provision hereof, neither RGP nor Client will be liable for consequential, special, indirect, incidental, punitive,
or exemplary loss, damage, cost or expense (including, without limitation, lost profits and opportunity costs). Exclusive of any
recovery under Section 21, RGP and Client understand and expressly agree that the maximum total liability of each party, its agents,
parent, affiliates, and subsidiaries, to the other for any actions, losses, damages, claims, liabilities, costs or expenses in
any way arising out of or relating to this Agreement, will not exceed the fees paid by Client to RGP hereunder for that portion
of RGP's Services or work product giving rise to the claimed liability. The provisions of this paragraph will survive the completion
or termination of this Agreement.


 


	 	7.	Confidentiality




 


RGP
and its Consultants will preserve the confidential nature of information received from Client in accordance with Client's established
policies and practices, written copies of which will be provided to RGP and acknowledged by each Consultant performing Services
for Client. RGP has in place with each Consultant a confidentiality agreement which protects the confidentiality of Client's information.


 


Client
will protect any and all information obtained by it that contains confidential, proprietary or private information about RGP or
its employees or independent contractors including, but not limited to, bill rates, background information, background screening
results, and social security numbers, regardless of whether such private information was obtained through RGP or through Client's
own means.


 


RGP
and Client agree that the most secure method of performing Services for Client is to access and work with Client's confidential
information exclusively from Client's own secure information technology environment. RGP and Consultants are responsible for complying
with Client's data security protocols. Should Client wish to authorize remote access to its systems, Client will provide RGP with
express written authorization to do so and Client will be responsible for providing all necessary and appropriate security safeguards.


 



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Except
as may be otherwise provided by Client's written policies or required by law, the obligations of confidentiality will not apply
to information which (i) is or becomes publicly available by means other than a breach hereof (including, without limitation,
any information filed with any governmental agency and available to the public); (ii) is known to, or rightfully in the possession
of, the recipient at the time of disclosure without breach or violation of any confidentiality agreement; (iii) thereafter becomes
known to or comes into the possession of the recipient from a third party the recipient reasonably believes is not under any obligation
of confidentiality to the disclosing party and is lawfully in the possession of such information; (iv) is developed by the recipient
independently of any disclosures previously made by the disclosing party to the recipient; or (v) is required to be disclosed
by order, or the process, of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons
or other legal process, provided that prior to such disclosure by the recipient the disclosing party is given reasonable advance
notice of such order or legal process and an opportunity to object to such disclosure.


 


RGP
may retain archival copies of Confidential Information after the conclusion of any Services for the purposes of complying with
the law, regulation or internal practices or compliance policies or for the dispute resolution purposes. RGP shall remain subject
to the confidentiality obligations and use restrictions set forth herein.


 


	 	8.	Payment for Services




 


Fees
for the Services provided hereunder are based on the billing rates set forth in the applicable Statement of Services. Client
will reimburse RGP for actual expenses incurred by Consultants in connection with the performance of Services which are
consistent with Client's expense policy, a copy of which will be provided by Client concurrent with its execution of this
Agreement, and documented with itemized receipts. Any travel by Consultant must be pre-approved by Client. Fees and
applicable expenses will be billed weekly, payable upon receipt of RGP's invoices. Should Client dispute the amount of any
fees or expenses, resolution of the dispute will not delay payment of the remainder of such invoice. If the Statement of
Services provides for Client to pay a retainer prior to the commencement of Services, fees will not be billed against the
retainer. RGP reserves the right to collect interest or other penalty from Client for promptly submitted invoices or, in the
event of a dispute, for the undisputed portion thereof, upon which payment is not received within thirty (30) days of
Client's receipt of such invoice. Specifically, RGP will be entitled to a late charge of the lesser of (i) 11/2% per month or
(ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law. RGP further reserves
the right to withdraw all Consultants provided to Client and to cease performing Services hereunder if any invoice is not
promptly paid when due.


 


If
the Services requested are to be performed and/or invoiced outside the United States, the applicable Statement of Services will
set forth alternative billing, payment and tax provisions.


 


	 	9.	Taxes on the Purchase of Services




 


Client
will reimburse RGP, pay directly to the appropriate tax authority, or timely file a valid tax exemption certificate for all
sales or use taxes legally imposed upon the transactions arising hereunder. All taxes due by Client become due when billed by
RGP to Client, or when assessed, levied or billed by the appropriate taxing authority, even though such billing occurs
subsequent to expiration of this Agreement.


 



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	 	10.	Assignment and Delegation




 


Neither
party will assign or delegate this Agreement or any rights, duties or obligations hereunder without the express written
consent of the other except that either party may assign its rights, duties and obligations hereunder to any successor by
reason or merger, reorganization, sale of all or substantially all of the assets, change of control or operation of law. RGP
agrees to provide services to an assignee of Client pursuant to the terms set forth herein only if such assignee provides
sufficient financial information to enable RGP to adequately evaluate the creditworthiness of such assignee and meets RGP's
other qualification standards and criteria. Subject to the foregoing, this Agreement will inure to the benefit of and be
binding upon the successors, legal representatives and assignees of the parties hereto.


 


	 	11.	Insurance




 






RGP
is insured under the following polices and in the amounts listed below:


 


	Policy
    Type	Limit	Deductible/
    Retention
	Workers'
    Compensation or similar law	Statutory
    per accident	None
	Employer's
    Liability	$1,000,000
    per accident	None
	Commercial
    General Liability	$1,000,000
    occurrence; $2,000,000 aggregate	None
	Business
    Auto (non-owned and hired)	$1,000,000
    combined single limit	None
	Umbrella
    Liability (general liability, auto and employer's liability)	$20,000,000
        per

        occurrence
        and aggregate
	None
	Professional
    Liability	$20,000,000
    per claim and aggregate	$100,000
    retention
	Specialty
    Risk or Cyber Liability (security and privacy liability, regulatory action and network interruption)	$5,000,000
    per claim and aggregate	$100,000
    retention
	Crime/Employee
    Dishonesty	$5,000,000
        per

        occurrence
        and aggregate
	$50,000
    deductible


 


 


Upon
request, Client will be named as an additional insured, where applicable, and a Certificate of Insurance will be provided.


 



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	 	12.	Ownership and Intellectual Property Rights




 


All
work product of any kind that Consultants may make, conceive, develop or reduce to practice, alone or jointly with others,
in connection with performing Services or that result from or that are related to such Services, whether or not they are
eligible for patent, copyright, mask work, trade secret, trademark or other legal protection ("Work Product") will
be works made for hire owned exclusively by Client except that RGP shall retain all right, title and interest in any
methodologies, analyses and other material developed by RGP or any Consultant which relates to RGP's business and does not
contain and is not derived from Client's confidential information ("RGP Material"). RGP hereby agrees to
irrevocably transfer and assign to Client all right, title and interest in and to the Services and any Work Product,
including all intellectual property or proprietary rights therein, but excluding any RGP Materials. At Client's request and
expense, during and after the term of this Agreement, RGP will assist and cooperate with Client in all respects and will
execute documents, and, subject to the reasonable availability of RGP and Consultants, give testimony and take such further
acts reasonably requested by Client to enable Client to acquire, transfer, maintain, perfect and enforce its intellectual
property rights and other legal protections for the Work Product.


 


	 	13.	Record Retention, Audits and Inspections




 


RGP
will make all accounting, operational and business records, which are in RGP's possession or under its control and which are necessary
to verify the basis for all charges billed to Client hereunder, available for Client's examination upon at least five (5) business
days prior written notice, during RGP's regular business hours, during the term of this Agreement and for a period of three (3)
years after its completion or termination.


 


	 	14.	Employment Fee




 


Client,
for itself and on behalf of its parent, subsidiaries and affiliates, agrees that if it hires or contracts for services with, either
directly or through a third party, any Consultant provided hereunder during such Consultant's engagement with Client or within
six months thereafter, Client will pay RGP a fee equal to 20% of such person's annualized salary or contracted fee paid by Client,
whichever is applicable. The provisions of this paragraph shall survive the completion or termination of this Agreement.


 


	 	15.	Non-Exclusive Rights




 


Nothing
in this Agreement will preclude or limit either party from independently acquiring or developing competitive products or services
for itself or its clients or customers, or from providing competitive products or services to its clients or customers, so long
as such party does not breach the obligations it has assumed hereunder, including the confidentiality obligations, or otherwise
violate the rights of the other party.


 


	 	16.	Termination of the Agreement




 


This
Agreement may be terminated by either party upon thirty (30) days' prior written notice to the other party; provided, however,
the Confidentiality; Employment Fee; Record Retention, Audit and Inspection; Mutual Indemnification; Limitations of Liability;
and Taxes on the Purchase of Services provisions will survive indefinitely the termination of this Agreement. 


 



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	 	17.	Acceptance




 


By accepting the Services of Consultants hereunder, Client is deemed to have consented to the material terms
set forth herein.


 


	 	18.	Modifications




 


The
terms of this Agreement may be modified only by a writing signed by both parties.


 


	 	19.	Notice




 


Any
notice required to be given hereunder will be delivered personally or sent by telecopy, overnight courier or first class mail,
postage prepaid, to the following address (or to the address listed above if none is provided here):


 


	 	To
    RGP:
	 	 	Resources
                                         Global Professionals

                                                       7101
                                         Armstrong Avenue

                                                       Irvine,
                                         CA 92614

	 	 	Attn:
    Legal Department
	 	 	Fax:
    714-428-6010
	 	 	 
	 	To
    Client:
	 	 	Ominto,
    Inc.
	 	 	1515
    South Federal Highway, Suite 307
	 	 	Boca
    Raton, FL 33432
	 	 	Attn:
    General Counsel




 


	 	20.	Waiver




 


No
waiver of or failure to enforce any term of this Agreement or Statement of Services will affect or limit a party's right thereafter
to enforce and compel strict compliance with every term thereof.


 


	 	21.	Attorneys' Fees and Costs




 


With
respect to any dispute arising out of or relating to this Agreement, including the writings incorporated by reference herein,
or the breach hereof or thereof, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred
in connection with any action or proceeding related to such dispute.


 


	 	22.	Headings




 


The
headings herein are for the purposes of convenience and ready reference only and will not be deemed to expand or limit the particular
sections to which they pertain.


 


	 	23.	Severability




 


In
the event any part of this Agreement is judged invalid or unenforceable, such invalidity or unenforceability shall not affect
the remaining provisions hereof.


 



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	 	24.	Entire Agreement




 


This
Agreement and the Statement(s) of Services attached hereto represent the entire understanding between the parties. In the event
of any conflict between the terms of this Agreement and any Statement of Services, the terms of the governing Statement of Services
will control.


 


	 	25.	Governing Law




 


The
validity, construction, enforcement, and interpretation of this Agreement will be governed by the substantive laws of the State
of Delaware.


 


IN
WITNESS WHEREOF, the parties hereto do hereby execute this Agreement as of the Effective Date.


 


	Resources Global Professionals	 	Ominto, Inc.
	 	 	 	 
	By:	/s/
    James Giustini	 	By:	/s/
    Mitch Hill
	 	 	 	 	 
	Name:	James Giustini	 	Name:	Mitch Hill
	 	 	 	 	 
	Title:	Managing Director	 	Title:	Executive Board Member, Ominto
	 	 	 	 	 
	Date:	June
    6 2016	 	Date:	6/7/16