Master Service Agreement Terms and Conditions

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1. Purpose and Structure of Agreement.

 

(a).     Structure of Agreement. The Agreement consists of (i) the provisions set forth in the HCM Unlocked LLC® Master Service Agreement Key Commercial Terms (the “MSA Key Terms”); the provisions set forth in this HCM Unlocked LLC® Master Service Agreement Terms and Conditions ("MSA Additional Terms"); (ii) Sales Contracts executed by the Parties and referenced herein; (iii) the Data Processing Agreement which may be located at https://www.hcmunlocked.com/data-processing-agreement; and(iv) any additional Sales Contract(s) executed by the Parties pursuant to the terms of this Agreement, including any Schedules, Exhibits, Addendums, or Amendments to such Sales Contracts (collectively, the "Agreement").

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(b).     Definitions. All capitalized terms used in this Agreement shall have the following meanings set forth on Exhibit A (“Definitions) hereto. Other capitalized terms used in the Agreement are defined where they are used and have the meanings so indicated.

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(c).     Deviations from Master Agreement; Priority. In the event of a conflict, the terms of the Sales Contracts shall be governed by the terms of the MSA Key Terms and MSA Additional Terms, unless an individual Sales Contract expressly and specifically notes the deviations from the terms of the MSA Key Terms and/or MSA Additional Terms for the purposes of such Sales Contract on an Amendment, Addendum, or Schedule which shall be attached to such Sales Contract.

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2. Services

 

(a).     Consultant will perform certain services and create and provide certain deliverables, as more particularly described in the Sales Contract (the “Services”) which will be entered into from time to time and, upon execution by the Parties, will be incorporated and made part of this Agreement. No obligation to either provide any Services shall be incurred by Consultant until such time that a Sales Contract has been executed by authorized representatives of both Parties. The existence of this Agreement shall not be construed as imposing any obligation upon the Consultant to agree to a Sales Contract or to otherwise perform any Services for the Client.

 

(b).     The Parties acknowledge and agree that during the term of the Agreement the Services may be modified and/or expanded from time to time upon a written Change Order executed by authorized representatives of the Parties expressly referencing this Agreement.

 

(c).     Client acknowledges and agrees that Consultant may use subcontractors and consultants to perform the Services to be provided under the Agreement.

 

(d).     Consultant shall perform Services in compliance with all Laws applicable to Consultant in its performance and delivery of the Services and all Laws applicable to the portion of the operations of the Client performed by Consultant as part of the Services.

 

(e).     Client agrees, at its own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. It shall be the responsibility of the Client to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the Services under this Agreement, unless otherwise specified in a Sales Contract.

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3. Warranty.

 

(a).     Consultant does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Consultant only warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.

 

(b).     Consultant represents and warrants solely that: (i) Consultant has the right to enter into this Agreement; (ii) to Consultant's actual knowledge, the Services as delivered will not violate any applicable law that is specifically identified in the applicable Sales Contract; (iii) to Consultant's actual knowledge, Consultant will not intentionally incorporate any third-party materials in the Work Product for which Consultant lacks appropriate rights; (iv) for a period of fifteen (15) days from delivery, Consultant shall use commercially reasonable efforts to correct material non-conformities in Work Product that are reproducible, documented in writing by Client during such period, and solely attributable to Consultant's failure to meet the express specifications in the applicable Sales Contract, provided that Client has paid all fees when due, implemented the Work Product in accordance with Consultant's instructions, and such non-conformities are not caused by Client modifications, third-party products, or use in a manner not contemplated by the documentation; and (v) Consultant will use commercially reasonable virus scanning software in general use in the industry to check for known viruses in Work Product prior to delivery.

 

(c).     LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 3 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. CONSULTANT DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. CONSULTANT SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO CLIENT BY THE CONSULTANT DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY SALES CONTRACT OR OTHERWISE. CLIENT'S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.

 

4. Confidential Information.

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(a).     Definition of Confidential Information. Each Party and its officers, directors, employees, affiliates, representatives, and agents (each, a “Representative”) may provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”). “Confidential Information” shall mean, without limitation: (i) the terms of any Agreement, including this Agreement and any Sales Contract, and the discussions, negotiations and proposals related to any agreement; (ii) all information concerning a Party’s products, business, and operations, including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, ideas, methods, methodologies, procedures, processes, techniques, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, Trade Secrets, patents pending, trademarks, copyrights, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (iii) personnel information  (including, without limitation, compensation and benefits), personal medical data, claims data, employee personally identifiable information, sensitive personal data; and (iv) all other non-public information provided by the Disclosing hereunder, which may be disclosed in tangible materials or any intangible form, either before or after the Parties sign this Agreement. In no event shall Consultant’s use or disclosure of information regarding or relating to the development, improvement, or use of any of Consultant’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party. The Period of Protection shall survive the termination of this Agreement.

 

(b).     Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants, and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are under confidentiality obligations no less restrictive as this Agreement. The Receiving Party shall at all times remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants, and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement and agrees not to use the Disclosing Party's Confidential Information for any other purpose or for the benefit of any Third Party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.

 

(c).     Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party's possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party, and such independent development can be objectively verified; (d) Receiving Party receives from a Third Party free to make such disclosure without, to the best of Receiving Party's knowledge, breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval.

 

(d).     Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.

 

(e).     No License to Confidential Information. All Confidential Information disclosed to the Receiving Party or any of its Representatives shall be and remain the sole property of the Disclosing Party. The Receiving Party shall have no rights or interests in such Confidential Information, except as expressly granted in this Agreement. Disclosure of Confidential Information hereunder shall not be deemed to grant any right or license, by implication or otherwise, to any Confidential Information or in any patents, patent applications, or other intellectual property of the Disclosing Party. Immediately upon the expiration or earlier termination of this Agreement, or upon written request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy all Confidential Information (including all copies thereof) then in the possession of the Receiving Party or any of its Representatives.

 

(f).     Remedies; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of this Agreement, it will immediately notify the Disclosing Party; take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication; and take any and all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that a breach or a threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party, for which remedies at law may be inadequate. In such event, the Disclosing Party shall be entitled, in addition to any other remedies available at law or at equity, to seek injunctive and/or equitable relief to prevent or otherwise restrain such a breach, without the need to post bond or other security. Any award of relief to the Disclosing Party shall include the Disclosing Party’s costs and expenses of enforcement (including attorneys’ fees, court costs and related expenses).

 

(g).     Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party's option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of the Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party's obligations to protect the Confidential Information pursuant to this Section will survive for five (5) years after the expiration or earlier termination of this Agreement.
 

5. Privacy of Personal Information.

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(a).     Mutual Compliance Obligations. Each Party is solely responsible for ensuring its own compliance with all applicable federal, state, and as required, international privacy laws as it pertains to Personally Identifiable Information (“PII”). Each Party represents and warrants that its collection, access, use, storage, and disposal of PII complies, and will continue to comply, with all applicable data privacy and protection laws, as well as any other applicable regulations and directives.

 

(b).     Consultant Safeguards. Consultant shall implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect PII. For purposes of this Agreement “commercially reasonable” means safeguards consistent with industry standards for consultants of similar size and scope and shall not require implementation of safeguards that would impose undue hardship or material alteration of Consultant’s business operations. These safeguards shall ensure that the manner in which PII is collected, accessed, used, stored, processed, disposed of, and disclosed complies with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement.

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(c).     Consultant Covenants. In recognition of its obligations under this Agreement, Consultant agrees and covenants that it shall: (i) keep and maintain all PII in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure; (ii) use and disclose PII solely for the purposes for which the PII, or access to it, was provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available PII for Consultant’s own purposes or for the benefit of anyone other than Client; and (iii) not, directly or indirectly, disclose PII to any person other than Consultant Personnel with a need to know, approved subcontractors, or auditors, unless and to the extent required by Government Authorities or to the extent expressly required by applicable law, in which case Consultant will use reasonable efforts to notify client before such disclosure or as soon thereafter as reasonably possible.

 

(d).     Client Responsibilities. Client acknowledges and agrees that: (i) Client is solely responsible for determining whether Consultant's security measures are appropriate for Client's intended use of the Services and for any PII Client provides; (ii) Client shall not provide PII that requires security measures beyond those specified in this Agreement without prior written agreement from Consultant and payment of additional fees as may be required; (iii) Client shall obtain all necessary consents, provide all necessary notices, and ensure it has all necessary rights to transfer PII to Consultant for processing under this Agreement; (iv) Client shall promptly respond to any requests from data subjects that Consultant refers to Client; and (v) Client shall implement appropriate security measures to protect PII in its possession or under its control.

 

(e).     Mutual Indemnification.

 

(i).      Client shall defend, indemnify and hold harmless Consultant for any claims, damages, or liabilities arising from Client's failure to obtain proper consents or authorizations for the collection and processing of PII provided to Consultant, or from Client's breach of applicable privacy laws.

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(ii).     Consultant shall defend, indemnify and hold harmless Client for any claims, damages, or liabilities arising directly from Consultant's breach of its express obligations under this Section 6, subject to the limitations set forth in Section (f) below.

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(f).     Limitation of Liability. Notwithstanding anything to the contrary in this Agreement: (i) Consultant's total aggregate liability arising out of or related to a breach of this Section 5 shall not exceed the total fees paid by Client to Consultant in the twelve (12) months preceding the event giving rise to the claim; (ii) Consultant shall not be liable for any breach resulting from Client's failure to comply with its obligations under this Agreement; and (iii) neither Party shall be liable for any indirect, incidental, special, punitive, or consequential damages arising out of or related to a breach of this Section 6.

 

(g).     Data Breach Notification. In the event of a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to PII for which Consultant is responsible, Consultant shall: (i) notify Client without undue delay after becoming aware of such breach; (ii) take reasonable steps to mitigate the effects of the breach and minimize potential harm; and (iii) reasonably cooperate with Client in Client's fulfillment of any legal obligations regarding the breach. Client shall be solely responsible for any notifications to affected individuals, regulatory authorities, or other third parties as required by law.

 

(h).      Applicability. The terms of this Section 5 shall apply to the Parties only to the extent that applicable federal, state or international privacy laws regulate either Party’s conduct.

 

(i).     Data Processing Agreement. The Parties shall comply with the terms and conditions of the Data Processing Agreement which may be located at https://www.hcmunlocked.com/data-processing-agreement and is incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the Data Processing Agreement, the terms of the Data Processing Agreement shall control with respect to data privacy and protection matters.

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6. Cost of Living Adjustment.

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(a).      Following the first anniversary of the Effective Date of each Sales Contract, and for each successive anniversary date thereafter, the Consultant may adjust the monthly fees for Services listed in the Sales Contract to reflect cost of living adjustments. For computation purposes, the Consultant will base fee adjustments, if any, on the percentage increase for the twelve-month period ninety (90) days prior to the contract anniversary date on which Services began, as published by the US Department of Labor – Bureau of Labor Statistics – Consumer Price Index – All Urban Consumers – All Items 1982-84=100) (see www.bls.gov). Annual adjustments shall be no less than two percent (2%) and shall not exceed five percent (5%), unless agreed to in writing by Client. Consultant shall provide Client with written notice of the adjustment at least thirty (30) days prior to implementation.

 

(b).      If industry-wide increases of costs of services, material price fluctuations, labor costs, or regulatory changes materially impact Consultant’s cost of providing Services, Consultant reserves the right to propose a reasonable additional adjustment beyond five percent (5%). Client shall not unreasonably withhold, condition, or delay agreement to such proposed adjustments when supported by documented cost increases.

 

(c).      In the event the specified index is discontinued or substantially modified, Consultant may substitute a comparable index published by a governmental agency or reputable financial institution.

 

(d).     If Client declines to accept any adjustment proposed under this section that exceeds five percent (5%), Consultant may, at its option and upon sixty (60) days written notice to Client, either: (i) continue providing Services at the maximum permitted adjustment of five percent (5%); or (ii) terminate the affected Services without penalty.

 

7. Ownership.

 

(a).     Work Product. All of Consultant’s work product originally created under this Agreement and expressly listed as a deliverable in the applicable Sales Contract, and all concepts, inventions, ideas, patent rights, data, materials, trademarks, and copyrights specifically developed for Client and paid for in full (collectively, “Work Product”), will be the exclusive property of, and all ownership rights shall vest in, Client. Consultant shall retain ownership of all Work Product that is not expressly listed as a deliverable in the applicable Sales Contract. Consultant retains the right to use any general knowledge, skills, methodologies, templates, frameworks, processes, and expertise developed, improved, or acquired in the course of performing Services under this Agreement, provided that such use does not disclose Client’s Confidential Information. Consultant agrees to sign all necessary documents or take such other actions as Client may reasonably request in order to perfect Client’s ownership rights in Work Product, provided that such requests do not impose additional cost or liability on Consultant. For purposes of clarity, Work Product does not include any Confidential Information, proprietary tools, methods, or pre-existing intellectual property of Consultant.

 

(b).     Intellectual Property Rights. The copyright and all other Intellectual Property Rights in all deliverables, pre-existing works, Derivative Works of such pre-existing works, and other developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of Consultant. Notwithstanding any provision to the contrary, the Parties expressly agree that no Work Product created pursuant to this Agreement shall be considered "Works Made For Hire" as defined in the U.S. Copyright Act, and Client expressly disclaims any ownership rights therein. For deliverables specifically identified in an applicable Sales Contract, Consultant hereby grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use such deliverables solely for Client's internal business purposes as specifically contemplated under this Agreement. This Agreement does not grant Client any license to any of Consultant's products, methodologies, frameworks, or proprietary tools, which must be licensed separately under terms and conditions (including additional fees) to be mutually agreed upon. Consultant reserves all rights not expressly granted to Client herein, and Client agrees to execute any documents reasonably requested by Consultant to evidence Consultant's ownership of all Intellectual Property Rights.

 

(c).     Consultant’s Freedom to Operate. Client acknowledges that Consultant regularly develops similar solutions for multiple clients and nothing in this Agreement shall restrict Consultant's ability to perform similar services for other clients, even if such services result in deliverables substantially similar to those provided to Client. Any improvements, enhancements, or modifications to Consultant's methodologies, processes, or frameworks that arise during the performance of Services shall automatically become part of Consultant's intellectual property portfolio, regardless of whether such improvements were suggested by or developed in collaboration with Client. Client further acknowledges that Consultant may incorporate general knowledge, skills, experience, ideas, concepts, know-how, and techniques acquired during the performance of Services into Consultant's business operations, services, and products, provided that Consultant does not disclose Client's Confidential Information. Nothing in this Agreement shall be construed as preventing Consultant from pursuing similar engagements or developing competing products or services, and Client expressly waives any claims related to such activities.

 

8. Indemnification.

 

(a).     By Consultant. Subject to the conditions and limitations set forth below, Consultant shall defend, indemnify and hold harmless Client from and against third-party Claims arising solely and directly out of: (i) Consultant's gross negligence or willful misconduct in performing the Services; or (ii) a final adjudication that a deliverable created entirely by Consultant and used by Client strictly as authorized infringes a U.S. patent, copyright, or trade secret existing as of the delivery date. This indemnification obligation is expressly conditioned upon: (a) Client promptly notifying Consultant in writing of any claim within ten (10) business days of becoming aware of it; (b) Consultant having sole control of the defense and settlement of the claim; (c) Client providing all reasonable assistance requested by Consultant; (d) Client not making any admission, compromise, or settlement without Consultant's prior written consent; and (e) Client's full compliance with all terms of this Agreement. Consultant's total aggregate liability under this indemnification shall not exceed the amounts paid by Client to Consultant under the applicable Sales Contract during the twelve (12) months immediately preceding the event giving rise to the Claim. Consultant shall have no indemnification obligation for any Claim arising from: (1) Client's specifications, materials, or instructions; (2) modifications made by anyone other than Consultant; (3) combination with Client's or third-party products, processes, or materials; (4) Client's continued use after notification of an alleged infringement; (5) Client's breach of this Agreement; (6) use in a manner not contemplated by the documentation; (7) Client's failure to implement updates that would have avoided the Claim; or (8) information, data, or content provided by or on behalf of Client. For any Claim covered by subsection (ii), Consultant may, at its option and expense: (x) procure for Client the right to continue using the deliverable; (y) replace or modify the deliverable to make it non-infringing; or (z) terminate Client's rights to the deliverable and refund a pro-rated portion of the fees paid.

 

(b).     By Client. Client shall defend, indemnify, hold harmless, and, at Consultant's option, pay for the defense of Consultant and its Affiliates, and their respective officers, directors, employees, contractors, agents, successors, and assigns (collectively, "Consultant Indemnitees") from and against any and all Claims, demands, damages, liabilities, losses, fines, penalties, costs, and expenses (including reasonable attorneys' fees, costs of investigation, and court costs) arising out of or in any way connected with: (i) any act, error, omission, negligence, misconduct, or breach of this Agreement by Client or its personnel, representatives, or agents; (ii) any violation or alleged violation by Client of any law, rule, regulation, or order applicable to Client's business or the subject matter of this Agreement, including but not limited to employment, labor, privacy, data protection, tax, and securities laws; (iii) any actual or alleged infringement, misappropriation, or violation of any intellectual property or other right arising from materials, data, content, specifications, or instructions provided by Client; (iv) Client's products, services, business operations, or business practices; (v) Client's use of the Services or Work Product in a manner inconsistent with this Agreement or applicable documentation; (vi) any information, data, or content provided by or on behalf of Client; (vii) Client's failure to provide accurate, complete, and timely information necessary for Consultant's performance; or (viii) any claim by Client's employees, contractors, customers, or other third parties with whom Client has a business relationship. Client's indemnification obligations shall apply regardless of the form of action, whether in contract, tort, strict liability, or otherwise, and shall not be limited to Claims that arise during the term of this Agreement. Client shall advance all expenses incurred by Consultant Indemnitees in connection with investigating, preparing for, or defending any indemnified Claim. Client shall not settle any Claim without Consultant's prior written consent. Client's indemnification obligations under this Agreement shall be primary and without regard to any right of contribution or indemnity Consultant may have against any other person or entity. The exclusion for Consultant's own negligence shall apply only to the extent such negligence is finally adjudicated by a court of competent jurisdiction to be the sole and direct cause of the Claim, and shall not apply to any Claim arising in part from Client's actions or omissions. This indemnification shall survive termination of this Agreement indefinitely.

 

(c).     Limited Application of Indemnification. The foregoing indemnification provisions apply exclusively to third-party claims brought by entities unaffiliated with either Party. These provisions do not apply to: (i) any Claim made by or between the Parties to this Agreement or their respective Affiliates; (ii) any Claim that could have been brought directly by a Party under this Agreement; (iii) any Claim seeking consequential, indirect, special, punitive, or exemplary damages; or (iv) any Claim arising from Client's use of the Services or Work Product in a manner not expressly authorized by this Agreement. All direct claims between the Parties shall be governed exclusively by the applicable provisions of this Agreement and subject to the limitation of liability set forth herein. Nothing in the indemnification provisions shall be construed to create any right or remedy not otherwise provided for in this Agreement or to expand the liability of either Party beyond the limitations set forth elsewhere in this Agreement.

 

(d).     Indemnification Process. As a strict condition precedent to indemnification, an Indemnitee shall: (i) notify the indemnifying Party in writing of any potential Claim within five (5) business days of becoming aware of such Claim, providing all available details; (ii) provide the indemnifying Party with all requested information and documentation within three (3) business days of request; (iii) not make any admission, statement, or comment regarding the Claim to any third party; (iv) allow the indemnifying Party to assume immediate and complete control of the defense and settlement; (v) provide full, timely, and continuous cooperation as requested by the indemnifying Party, including but not limited to making personnel available for interviews, depositions, and testimony, providing access to relevant documents and evidence, and executing any documents reasonably requested by the indemnifying Party; and (vi) use counsel selected by the indemnifying Party unless a conflict of interest exists. Any delay or failure in notification shall relieve the indemnifying Party of its obligations to the extent the indemnifying Party is prejudiced or additional costs are incurred. The indemnifying Party shall have sole authority to defend and settle any Claim, provided that when Consultant is the indemnifying Party, it may settle a Claim in its sole discretion, and when Consultant is the Indemnitee, no settlement shall be entered into without Consultant's express written consent, which may be withheld in its sole discretion. If Consultant is the Indemnitee and the Client fails to vigorously defend a Claim, Consultant may assume control of the defense and settlement at Client's expense. Client shall advance all defense costs and expenses (including attorneys' fees) incurred by Consultant Indemnitees within fifteen (15) days of receiving an invoice, regardless of whether Client or Consultant is the indemnifying Party.

 

(e).     This Section 8 states the entire obligation and the exclusive remedies with respect to the Parties’ indemnification obligations pursuant to this Agreement.

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9. Limitation of Liability.

 

(a).     Exclusion of Types of Damages. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS, GOODWILL, REPUTATION, USE, OR DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE TYPE OF CLAIM, THE NATURE OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

(b).     Limitation of Liability. Except for (i) Client’s liability for payments due to Consultant under this Agreement or any Sales Contract issued hereunder, (ii) damages arising from either Party’s breach of its confidentiality obligations hereunder, (iii) claims arising from a Party’s gross negligence, fraud or willful misconduct, (iv) claims that a product, software or consulting deliverable provided by Consultant hereunder infringes on a third-party’s patent, copyright, trade secret, or other intellectual property right, or (v) claims subject to indemnification under Section (8) of this Agreement, the total cumulative liability of the Parties in connection with this Agreement, the Services, and any and all causes of actions of any kind, shall be limited to the lesser of (i) aggregate fees actually paid by Client to Consultant under this Agreement during the 12-month period immediately preceding the event giving rise to the claim, or (ii) two hundred and fifty thousand dollars ($250,000.00). Notwithstanding the foregoing, nothing in this Section 9(b) shall limit a Party’s liability for bodily injury, death, or damage to real or tangible personal property proximately caused by such Party’s gross negligence, fraud, or willful misconduct.

 

(c).     No Liability. In addition to the limitations above, in no event shall Consultant have liability for any Claim, loss, liability, damage, cost, or expense incurred by Client or any third party arising from or related to: (i) any act or omission by Consultant that was requested, approved, or ratified by Client; (ii) any decision, action, or inaction by Client based on or inconsistent with Consultant's advice, recommendations, or services; (iii) the failure of Consultant to take any action that required Client's authorization or that Client failed to timely authorize; (iv) the failure of Client to timely provide correct, complete and accurate information to Consultant pertinent to the performance of Consultant’s Service; (v) adjustments or issues arising from services performed by previous providers; (vi) third-party products, software, or services; (vii) force majeure events; (ix) changes in applicable laws, regulations, or industry practices; (viii) implementation of services by Client or third parties; or (ix) Client's failure to implement any recommendation or correction proposed by Consultant.

 

(d).     Comprehensive Disclaimer. Client understands and acknowledges that (i) Consultant is acting solely in an advisory capacity and all decisions regarding Client's business remain Client's sole responsibility; (ii) Client is solely responsible for the accuracy and completeness of all information provided to Consultant; (iii) Client is solely responsible for independently evaluating and determining the suitability of any recommendation, guidance, or service provided by Consultant; (iv) Consultant may rely on third-party data, software, and information without independent verification; and (v) Client assumes all risk associated with any decisions made or actions taken based on Consultant's services. Client is hereby put on notice that the Consultant does not engage in the practice of law and does not render any legal advice. Accordingly, Client’s use of the Services is not intended to create, and does not constitute, an attorney-client relationship. Client is encouraged to seek independent legal counsel in connection with any legal matters.

 

10. Relief Events.

 

(a).     Relief Events and Consultant Remedies. If Consultant fails to or is unable to comply with any of its obligations under this Agreement or any Sales Contract as a result of: (a) any failure by Client to perform any condition required for Consultant’s services and deliverables as stated in the relevant Sales Contract; (b) any failure by Client to comply with its obligations under this Agreement and as stated in the relevant Sales Contract, including timely payment of all undisputed fees and reimbursable costs; (c) the failure of Client’s Designated Representative to reasonably and timely cooperate with Consultant; (d) any incorrect or incomplete information, data, or assumption applicable provided by or on behalf of Client; (e) any delay or failure by Client to provide timely decisions, approvals, and acceptances; (f) any change in applicable laws, regulations, or industry standards; (g) any force majeure event; (h) any action or inaction by a third party outside Consultant’s reasonable control; (i) any scope change not formally documented in a written amendment; or (j) any other circumstance that materially impedes Consultant’s ability to perform (collectively, “Relief Events”), then Consultant shall be automatically excused from performance and shall not be deemed to be in breach of this Agreement or any applicable Sales Contract as a result thereof.

 

(b).     Upon the occurrence of a Relief Event that, in its sole and exclusive discretion, has or is likely to have a material adverse impact on Consultant’s ability to comply with its obligations under this Agreement or any applicable Sales Contract, the Consultant shall provide Client with thirty (30) days’ written notice of that Relief Event, detailing its consequences, and whether a cost increase or delay is anticipated, as soon as reasonably practicable. If the Relief Event is not cured or the Sales Contract is not revised to the mutual satisfaction of both Parties within the thirty (30) day notice period, Consultant may, at its sole discretion, terminate the affected Sales Contract or the affected portion thereof with cause and without liability to the Client as to the Sales Contract or the affected portion thereof. Client shall remain obligated to pay for all Services performance and deliverables provided prior to termination, as well as any wind-down costs, transition expenses, and committed costs incurred by Consultant.

 

11. Force Majeure.

 

(a).     With the exception of payment of any amounts due to Consultant, neither Party shall be liable or responsible for any failure to perform, delay, or deficiency in performance of any of its obligations under this Agreement or any Sales Contract that is caused by or related to events outside its reasonable control (a “Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission, or accident beyond a Party's reasonable control and includes in particular (without limitation) terrorist attack, war, civil unrest, fire, explosion, malicious damage, epidemic, pandemic, viral outbreak (including but not limited to Covid-19 and its variants), quarantine restrictions, storm, flood, earthquake, or other natural disaster or adverse weather conditions, strikes, labor shortages, lock-outs, other industrial action, shortage of personnel, materials, or equipment, impossibility of the use of public or private telecommunication network, interruption or failure of utility service, malicious activity against computer systems such as unauthorized access, computer virus, ransomware, or denial of service attack, illegal or unlawful actions of third parties, regulations, policies or restrictions of any government or public authority, changes in laws or regulations, or supplier or vendor failures.

 

(b).     Where the Force Majeure Event affects the Services or deliverables, the other Party's right to receive such Services or deliverables is deemed to be suspended for the period that the Force Majeure Event continues, and the affected Party shall use its commercially reasonable efforts to bring the Force Majeure Event to a close or find a solution by which its obligations under this Agreement or any affected Sales Contract may be performed despite the Force Majeure Event. If the Force Majeure Event continues for more than thirty (30) days, Consultant shall have the right to terminate the Agreement and/or any applicable Sales Contract without penalty or liability and shall be entitled to payment for all Services rendered, expenses incurred, and commitments made prior to termination.

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12. Non-Solicitation.

 

(a).     During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, neither Party shall directly or indirectly (i) solicit or induce any employees, independent contractors, or consultants of the other Party to leave their employment or engagement. The Parties agree that in the event of a breach of any of this Section 12, the non-breaching Party shall be entitled, without limitation of any other rights or remedies otherwise available to it, to obtain an injunction or other form of equitable relief from any court of competent jurisdiction. Additionally, Consultant shall not be restricted from engaging in business with any entity or individual who independently approaches Consultant without solicitation in violation of this provision.

 

13. Relationship with Client.

 

(a).     Independent Business Relationship. Consultant agrees that, in its relationship with Client under this Agreement, it is acting in the capacity of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, employment relationship, or any other form of legal association between Consultant and Client. The Parties expressly disclaim any intention to create any employment relationship or any relationship that would result in either Party being liable for the actions or omissions of the other.

 

(b).     Consultant Autonomy. Consultant retains the sole and absolute discretion in determining the manner, means, methods, personnel, subcontractors, timing (except as specifically set forth in a Sales Contract), and all other aspects of performing services under this Agreement. Consultant shall not have the authority to enter into any agreements, incur any obligations, make any representations, or act on behalf of Client except as expressly authorized in writing.

 

14. Dispute Resolution.

 

(a).     Dispute Resolution Procedures. The Parties agree to use only the procedures set forth in this Section to resolve any dispute or disagreement between the Parties, their corporate parents, subsidiaries, affiliates, successors, and permitted assigns arising out of or related to the business relationship established by this Agreement, including the interpretation or application of this Agreement or any Sales Contract (a “Covered Dispute”).

 

(b).     Internal Efforts. The Parties shall first use good faith efforts to resolve Covered Disputes on an informal basis through management channels appropriate to that particular dispute. As soon as practicable after becoming aware of a Covered Dispute, the Party seeking to pursue resolution of the dispute shall provide the other Party with written notice describing the dispute in reasonable detail and asking the other Party to attempt to resolve the dispute. It is the Parties’ intent that internal negotiations shall be completed within fifteen (15) days and that all obligations under the Agreement and any affected Sales Contract shall continue during this fifteen (15) day period, provided, however, that Consultant may suspend performance of Services during this period if the dispute involves Client’s failure to make any payment when due or Client’s material breach of any provision of this Agreement.

 

(c).     Mediation. If the Covered Dispute cannot be resolved by internal efforts, the Parties agree that prior to commencing any court action, they will first engage the services of a professional mediator agreed upon by the Parties and attempt in good faith to resolve the Covered Dispute through confidential, non-binding mediation. Each Party shall bear one-half (1/2) of the mediator’s fees and expenses and shall pay all of its own attorneys’ fees and costs related to the mediation. The mediation shall take place in Palm Beach County, Florida, or virtually per the agreement of the Parties. Consultant shall not be required to participate in mediation or any subsequent dispute resolution procedure if the dispute involves (i) nonpayment of fees owed under this Agreement or any applicable Sales Contract, (ii) Client's breach of confidentiality obligations, or (iii) protection of Consultant's intellectual property rights, and Consultant may proceed directly to litigation or other legal remedies in such cases.

 

(d).     Class, Collective and Representative Actions. To the maximum extent permitted by applicable law, the Parties agree that no Covered Dispute may be initiated or maintained on a class action, collective action, or representative action basis. This means that neither Party may serve or participate as a class, collective, or representative action member or representative, or receive any recovery from a class, collective, or representative action involving Covered Disputes, either in court or in arbitration. In addition, neither Party may participate as a plaintiff or claimant in a class, collective, or representative action to the extent that action asserts a Covered Dispute against the other Party. Nothing in this Agreement will preclude a Party or its employees, officers, members, or directors from testifying or providing information in a class action, collective action, or representative action. If any portion of this Section is found to be void, voidable, or otherwise unenforceable, then such portion shall be severed from this Agreement, and all other parts and provisions shall remain in full force and effect.

 

(e).      Governmental Proceedings.

 

(i).     For purposes of this Agreement, “Governmental Agency” means any entity of federal, state, or local government that has the authority and jurisdiction to regulate the affairs of either Party, including but not limited to the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, the National Labor Relations Board, the U.S. Department of Justice, and the U.S. Securities and Exchange Commission; provided, however, that the term does not include the judiciary (including federal and state courts and municipal courts).

 

(ii).    This Section does not prohibit a Party from initiating a proceeding with a Governmental Agency, from cooperating with a Governmental Agency, or from testifying before or providing evidence to a Governmental Agency, a judicial proceeding, or a legislative hearing. This Section also does not prohibit a Party from making disclosures that are protected under the whistleblower provisions of state or federal law or regulation.

 

(iii).    To the maximum extent permitted by law, each Party is waiving its right to receive any individual monetary relief from the other Party resulting from a Governmental Agency proceeding, regardless of whether the Party has initiated the Governmental Agency proceeding. In the event a Party obtains such monetary relief, the other Party may offset it against any payments due. This paragraph does not limit a Party’s right to receive an award from any Governmental Agency that provides awards for providing information relating to a potential violation of law.

 

(f).      Attorneys' Fees. In the event of any dispute between the Parties arising out of or related to this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party all reasonable attorneys' fees, costs, and expenses incurred in connection with such dispute, including any appeal thereof. Notwithstanding the foregoing, if Consultant initiates proceedings to collect unpaid fees or expenses, Client shall be responsible for all costs of collection, including reasonable attorneys' fees, regardless of whether Consultant is deemed the prevailing party.

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15. Miscellaneous.

 

(a).     Notices. All notices, requests and other communications, with the exception of service of legal process, shall be in writing and shall be validly given when (i) hand delivered, (ii) delivered by recognized commercial overnight courier services, (iii) given by registered or certified first class mail, postage prepaid, return receipt requested, to a Party at its address set forth in the preamble to this Agreement, or to such other address as shall have been specified by such Party in accordance with this paragraph (with confirmation of transmission), or (d) sent via electronic mail to an email address designated by the other Party for receipt of notices with as indicated herein.

 

(b).     Entire Agreement. This Agreement represents the entire understanding between the Parties, and hereby supersedes all prior understandings and agreements, whether oral or written, between the Parties with respect to the Services and deliverables provided by Consultant and shall apply to all Sales Contracts previously undertaken but not yet completed as of this Agreement’s Effective Date. In the event of a direct conflict between this Agreement and a Sales Contract, the provisions of the Sales Contract shall control. This Agreement may not be modified or amended, in whole or in part, except in a writing that is signed by the authorized representative of both Parties.

 

(c).     Waiver. Either Party may waive compliance by the other Party with any provision of this Agreement that such other Party was or is obligated to comply with or perform, provided, however, that such waiver must be in writing signed by the Party granting such waiver, and such waiver shall not operate as a waiver of, or estoppels with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity.

 

(d).     Severability; Enforcement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

 

(e).     Governing Law. The validity, interpretation, enforceability, and performance of this Agreement and all Sales Contracts shall be governed by and construed in accordance with the law of the State of Florida, excluding its conflict of laws section. Subject to the arbitration provisions above, exclusive venue for any controversy under this Agreement shall be in the state and federal courts for the County of Palm Beach, Florida. Client expressly waives any objection to jurisdiction or venue in such courts and consents to personal jurisdiction in such courts.

 

(f).     Assignment. This Agreement may not be assigned by the Consultant without the Client’s prior written consent, which shall not be unreasonably withheld. This Agreement may be assigned by the Client in connection with a merger, sale of all or substantially all of its assets, or corporate restructuring only with the Consultant’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Consultant may assign this Agreement to any affiliate or successor entity without Client's consent.\

 

(g).    Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original instrument and together which shall constitute one and the same Agreement.

 

(h).    Insurance. Client shall maintain, at its own expense, comprehensive general liability insurance, professional liability insurance, and other appropriate insurance coverage with limits of not less than $2,000,000 per occurrence. Upon request, Client shall provide Consultant with certificates of insurance evidencing such coverage and naming Consultant as an additional insured. Consultant shall maintain such insurance as it deems appropriate for its business operations.

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Exhibit 1. Definitions

 

The following terms used in the Agreement shall have the meanings indicated:

 

Affiliate means, with respect to a Party, any entity at any tier that controls, is controlled by, or is under common control with that Party. For purposes of this definition, the term "control" (including with correlative meanings, the terms "controlled by" and "under common control with") means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.

 

Agreement means the provisions set forth in the HCM Unlocked LLC® Master Service Agreement Key Commercial Terms (the “MSA Key Terms”); the provisions set forth in this HCM Unlocked LLC® Master Service Agreement Terms and Conditions ("MSA Additional Terms"); (ii) Sales Contracts executed by the Parties and referenced herein; and (iv) any additional Sales Contract(s) executed by the Parties, including any Schedules, Exhibits, Addendums, or Amendments to such Sales Contracts, which documents are incorporated into the "Agreement" by this reference.

 

Change Order means a document that amends the Agreement.

 

Charges means, collectively, the charges for the Services as set forth in any applicable Charges Schedule.

 

Charges Schedule means the schedule to each Sales Contract specifying the Charges applicable to the Services described in each such Statement of Work.

 

Claim means any civil, criminal, administrative, regulatory or investigative action or proceeding commenced or threatened by a Third Party, including Governmental Authorities and regulatory agencies, however described or denominated.

 

Effective Date means the date on which Consultant begins to provide Services under a Sales Contract to the Client as agreed upon by the Parties. There may be a separate Effective Date with respect to any particular Services or set of Services.

 

Data Processing Agreement means that agreement which may be accessed via the following link, https://www.hcmunlocked.com/data-processing-agreement, and which is incorporated herein by reference.

 

Deliverables means, as further specified in a Sales Contract, results of the Services to be provided by Consultant to Client, including output produced in electronic written or verbal form.

 

Dispute means any dispute, controversy, or Claim, including situations or circumstances in which the Parties are required to mutually agree on additions, deletions or changes to terms, conditions, or Charges, arising out of, or relating to, the Agreement.

 

Execution Date means the date of execution of a Statement of Work by the Parties as set forth on the initial page thereof.

 

Exhibit means an attachment to the Master Agreement or a Sales Contract as such attachment may be amended.

 

Facilities means the Client and/or Consultant facilities at and from which Consultant will provide and perform the Services, as set forth in the applicable Sales Contract.

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Governmental Authority means any nation or government, any federal, state, province, territory, city, town, municipality, county, local or other political subdivision thereof or thereto, any quasi-Governmental Authority, and any court, tribunal, arbitral body, taxation authority, department, commission, board, bureau, agency, instrumentality thereof or thereto or otherwise which exercises executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Intellectual Property Rights means any and all intellectual property rights existing from time to time under any Law, including patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. For purposes of this definition, rights under patent law shall include rights under any and all patent applications and patents (including letters patent and inventor's certificates) anywhere in the world, including any provisionals, substitutions, extensions, supplementary patent certificates, reissues, renewals, divisions, continuations in part (or in whole), continued prosecution applications, requests for continued examination, and other similar filings or stages thereof provided for under the laws of the United States, or of any other country.

 

Law means all applicable laws (including those arising under common law), statutes, codes, rules, regulations, reporting or licensing requirements, ordinances and other pronouncement having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city, province, or other political subdivision, including those promulgated, interpreted, or enforced by any Governmental Authority.

 

Losses means any judgments, settlements, awards, losses, charges, liabilities, penalties, interest claims (including Taxes and all related interest and penalties incurred directly with respect thereto), however described or denominated, and all related reasonable costs, expenses and other charges (including all reasonable attorneys' fees and reasonable internal and external costs of investigations, litigation, hearings, proceedings, document and data productions and discovery, settlement, judgment, award, interest and penalties), however described or denominated.​