Master Services Agreement

Last Updated 9/15/2025

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  1. Master Service Agreement

     

    (1)   Parties and Incorporation.

     

    (a)    This Master Service Agreement (“MSA”) sets forth the general terms and conditions governing all Sales Contracts entered into between HCM Unlocked LLC® (“Consultant”) and its clients (“Client”). Each Sales Contract incorporates this MSA and, where applicable, the Data Processing Agreement (“DPA”).

     

    In the event of conflict, the order of precedence shall be: (i) the DPA for data protection and privacy matters, (ii) this MSA for general commercial and legal terms, and (iii) the applicable Sales Contract(s), including schedules, exhibits, addenda, and amendments, for scope of services, pricing, and deliverables.

     

    By executing a Sales Contract, Client agrees that this MSA, together with the DPA (https://www.hcmunlocked.com/data-processing-agreement), and all applicable Sales Contracts collectively form the complete and binding agreement (the “Agreement”).

     

    (b)   Consultant may update this MSA or the DPA at any time by publication at the designated URL. Updates shall take effect immediately upon publication and apply automatically. Client is responsible for reviewing updates, and continued use of the Services or payment of invoices constitutes acceptance. If Client objects to an update, it must notify Consultant in writing within ten (10) business days of publication. Client’s sole remedy shall be to terminate the Agreement with thirty (30) days’ notice, during which the prior version will continue to apply. Failure to object within this timeframe constitutes acceptance of the update.

     

    (c)    By executing this Agreement, Client expressly acknowledges and agrees that it has reviewed and accepts the incorporated Additional Terms and DPA.

     

    (2)   Term; Renewal.

    (a)    Term. This Agreement commences on the Effective Date and continues until all Services under all Sales Contracts have been completed or terminated. Each Sales Contract is effective on its Execution Date.

     

    (b)   Renewal. Unless otherwise specified in a Sales Contract:

    1.      Month-to-Month or Hourly Services automatically renew monthly unless or until notice of non-renewal is received. Month-to-Month and Hourly Services do not incur Early Termination Fees upon notice of termination.  

    2.      Annual Services automatically renew for one-year terms unless Client provides notice at least sixty (60) days prior.

    3.       Notices must be emailed to [email protected] and are effective only upon Consultant’s written confirmation.

    (c)    Renewal Terms.  Payment for renewal services will be processed using the same payment method as the initial term unless Client provides updated payment instructions.

     

    (d)   Service Continuation. Services continuing past expiration convert to month-to-month at Consultant’s then-current rates.

     

    (3)   Client Obligations.

    (a)    Essential Client Cooperation. Client acknowledges and agrees that Consultant’s ability to perform the Services depends on Client’s full, accurate, and timely cooperation. Client shall:

    1.      Provide all requested information, data, documentation, and feedback promptly and completely;

    2.      Ensure its Designated Representative responds to Consultant inquiries within two (2) business days;

    3.      Make timely decisions and secure all necessary internal and third-party approvals;

    4.      Grant Consultant timely access to systems, facilities, personnel, and resources necessary for performance of Services;

    5.      Comply with all applicable laws, regulations, and industry standards related to its business and use of Services;

    6.      Maintain appropriate security measures, access controls, and data protection for its systems and information; and

    7.      Use the Services only for lawful purposes and in accordance with this Agreement.

    (b)   Consequences of Non-Cooperation. Consultant shall not be liable for any delay, increased costs, defects, or performance failures resulting from Client’s failure to meet its obligations under this Section. Any such failure by Client shall:

    1.      Excuse Consultant’s performance to the extent impacted;

    2.      Entitle Consultant to equitable adjustments to timelines and fees;

    3.      Not relieve Client of its payment obligations;

    4.      Automatically extend all deadlines, milestones, and delivery dates by a period equal to any Client delay plus five (5) business days for Consultant resource reallocation;

    5.      Entitle Consultant to charge additional fees at its then-current hourly rates for any additional work, rework, or resource reallocation required as a result of Client’s delay or non-cooperation;

    6.      After five (5) business days of continued non-cooperation following written notice, permit Consultant to suspend Services without liability until Client remedies the non-cooperation; and

    7.      If Client’s non-cooperation continues for more than fifteen (15) business days, constitute a material breach entitling Consultant to terminate the affected Services and retain all prepaid fees as liquidated damages, in addition to any other remedies available under this Agreement.

    (c)    Usage Restrictions. Client may use the Services solely for its internal business purposes and in compliance with all applicable laws and Consultant’s acceptable use policies. Client shall not: (i) sublicense, sell, assign, or otherwise make Services available to any third party; (ii) modify, reverse engineer, decompile, disassemble, or create derivative works of any Services, deliverables, or software; (iii) use Services for unlawful, infringing, fraudulent, or malicious purposes; (iv) disrupt or interfere with the proper functioning of the Services; or (v) attempt unauthorized access to Consultant’s systems, networks, or data.

    (4)   Services and Scope.

    Consultant will provide Services as described in Sales Contracts. Consultant has no obligation to perform Services until a Sales Contract is executed. Marketing/promotional materials are non-binding. Consultant may subcontract Services, subject to Section 5 of the DPA (Subprocessors), and remains liable for subcontractor performance.

    (5)   Consultant’s Obligations.

    (a) Service Standards. Consultant will perform the Services in a commercially reasonable manner using qualified personnel and appropriate resources. Consultant retains complete and sole discretion over personnel assignment, management, and replacement. If Client has concerns regarding Consultant personnel, Client may submit written notice with specific details. Consultant will review such concerns in good faith but retains sole and absolute discretion whether to reassign, replace, or retain such personnel.

    (b) Employment Relationship. Consultant is an independent contractor and is solely responsible for: (i) all compensation, benefits, and payroll for its personnel; (ii) all employment taxes, insurance, and related obligations; (iii) compliance with applicable labor and employment laws; and (iv) direction, supervision, and control of its personnel. Consultant’s personnel are not, and shall not be deemed, employees, agents, or representatives of Client. Nothing in this Agreement shall be construed to create an employment relationship, agency, joint venture, or partnership between Client and Consultant or its personnel.

    (6)   Designated Representative.

    (a)    Client Representatives. Client shall designate one or more employees, consultants, or authorized agents (“Designated Representatives”) as primary contacts for each Sales Contract and Project. Each Designated Representative shall:

    1.      Possess reasonable knowledge of the applicable Project;

    2.      Have authority to make binding decisions regarding approvals, scope, timelines, and deliverables;

    3.      Review and approve Consultant’s work product, including drafts;

    4.      Respond to Consultant’s requests within two (2) business days; and

    5.      Take reasonable actions to prevent Project delays.

    (b)   Binding Authority. Consultant may rely on all communications, instructions, and approvals from any Designated Representative as binding on Client without requiring further verification or Client confirmation.

    (7)   Acceptance and Latent Issues.

    (a)    Acceptance Process. Client shall have thirty (30) calendar days from receipt of each Service or deliverable (“Acceptance Period”) to inspect and test the deliverable. To reject a deliverable, Client must provide written notice during the Acceptance Period that: (i) identifies specific material deficiencies; (ii) explains how such deficiencies fail to meet agreed specifications; and (iii) requests revisions or expressly declines acceptance. If Client does not provide such notice within the Acceptance Period, the deliverable shall be deemed irrevocably accepted. Each deliverable shall be accepted or rejected independently and acceptance of one deliverable shall not be contingent upon acceptance of an entire Project.

     

    (b)   Latent Issues. A “Latent Issue” means a material nonconformance with written specifications that (i) materially impairs the core functionality of a deliverable, and (ii) could not reasonably have been discovered during the Acceptance Period despite diligent inspection. Latent Issues do not include: (1) errors correctable by Client; (2) cosmetic or preference-based changes; (3) issues caused by third-party systems, software, or infrastructure; (4) problems arising from Client misuse, alteration, or improper implementation; or (5) non-functional or cosmetic variances.

     

    (c)    Latent Issue Remedies. If Client identifies a Latent Issue within ninety (90) days after completion of the applicable Sales Contract, Consultant shall, as Client’s sole and exclusive remedy, use commercially reasonable efforts to address the issue at no additional cost, using methods and timelines determined in Consultant’s reasonable discretion. After such ninety (90) day period, Consultant shall have no obligation to address Latent Issues, and Client irrevocably waives all related claims.

    (8)   Change Request Requirements.

    (a)    Submission Requirements. All requests for revisions, corrections, or rejections of any Services or deliverables (“Change Requests”) must: (i) be submitted in writing via email to Consultant; (ii) include a clear and specific description of the issue; (iii) explain the reason for the requested change; and (iv) be submitted within the following timeframes: (1) for standard issues, within the thirty (30) day Acceptance Period under Section 5(a); or (2) for Latent Issues, within three (3) business days of discovery and no later than the expiration of the ninety (90) day Latent Issue period under Section 5(b), whichever occurs first.

     

    (b)   Consultant’s Response. For timely and properly submitted Change Requests that identify material nonconformance with applicable specifications, Consultant will: (i) review the Change Request; (ii) determine, in its sole discretion, whether the issue constitutes material nonconformance; and (iii) if material nonconformance exists, use commercially reasonable efforts to address the issue at no additional cost to Client.

     

    (c)    Limitations. Consultant shall have no obligation to address: (i) Change Requests submitted after applicable deadlines; (ii) requests outside the defined scope of Services; (iii) changes based on Client preference rather than specification nonconformance; or (iv) issues that do not materially impact functionality or performance.

     

    (9)   Fees & Invoicing.

    (a)    Fees. Client shall pay all fees for Services as specified in the applicable Sales Contract. All fees are non-refundable except as expressly provided in this Agreement. Unless otherwise stated, fixed monthly fees are charged in advance on or around the first of the month. Hourly or month-to-month services are billed on or around the first of the month following receipt of the services. Consultant reserves the right to modify its fees for any renewal term upon notice to Client.

     

    (b)   Payment Method. Payment shall be made via automatic withdrawal from the account provided by Client to Consultant upon execution of the Agreement. Client shall maintain valid payment authorization throughout the Term. Alternative payment methods may be rejected at Consultant’s discretion.

     

    (c)    Commencement of Billing.  Billing begins immediately upon Agreement execution and initiation of Client intake. The initial charge may be prorated based on the execution date. Subsequent charges will follow the standard billing cycle with fixed fees charged in advance and hourly/month-to-month services billed after delivery.

     

    (d)   Time Records.  For time-based fees, Consultant shall provide reasonable documentation of time spent upon written request. Such records shall be deemed accurate and binding unless disputed in writing within fifteen (15) days.

     

    (e)    Late Payments. Client understands and agrees that should any automatic payment be declined or rejected, Client will be charged a one-time penalty of two percent (2%) of the outstanding balance plus interest which will accrue at a rate of 0.012% daily on any amounts that remain due and owing. In addition to these charges, Consultant shall have the right, in its sole discretion and without further notice, to suspend Services, withhold deliverables, and/or terminate this Sales Contract.

     

    (f)     Suspension of Services. Consultant may suspend Services if (i) any automatic payment is declined or rejected and remains unpaid three (3) days after written notice; (ii) Client’s use of the Services poses a security, legal, or operational risk; (iii) Client breaches this Agreement; (iv) Client becomes insolvent, files for bankruptcy, or is subject to receivership; or (v) suspension is required by applicable law. Suspension does not relieve Client of payment obligations and will continue until full payment of all outstanding amounts plus applicable late fees and interest. Suspension may result in resource reassignment and project delays.

     

    (g)    Waiver of Dispute Rights. Client must dispute any charge in writing within thirty (30) days, providing reasonable detail. Failure to do so constitutes irrevocable acceptance of the charge and waiver of dispute rights.

     

    (10)                    Cancellation; Termination.

     

    (a)    Termination for Cause. Consultant may terminate this Agreement or any applicable Sales Contract for material breach by the other Party by providing thirty (30) days’ written notice, provided such breach is not cured within the notice period.

     

    (b)   Immediate Termination by Consultant. Consultant may terminate immediately, without opportunity to cure, if Client: (i) fails to make any payment when due; (ii) breaches confidentiality obligations; (iii) infringes or misappropriates Consultant’s intellectual property; (iv) becomes insolvent, files for bankruptcy, or is subject to receivership; (v) violates any applicable law or regulation; or (vi) violates any Consultant policy related to the Services. Consultant may also terminate immediately, without opportunity to cure, if: (vii) Client undergoes a material adverse change in its business, financial condition, or operations that, in Consultant’s reasonable judgment, increases the risk of continuing to provide Services; (viii) Client has been late in making any payment more than twice in any six (6) month period, regardless of whether such payments were ultimately made; (ix) Client files for bankruptcy protection or has an involuntary bankruptcy petition filed against it that is not dismissed within thirty (30) days; (x) Client undergoes a change of control without Consultant’s prior written consent; or (xi) Client’s use of the Services poses a security or reputational risk to Consultant.

     

    (c)    Notice Requirements. Notices of alleged breach by Consultant must be sent to [email protected], detailing the specific breach with supporting evidence. Notices sent elsewhere or lacking details are invalid.

     

    (d)   Termination for Convenience by Client. Client may terminate this Agreement or any Sales Contract for convenience by providing sixty (60) days’ prior written notice to [email protected].

     

    (e)    Early Termination Fees (ETF).  In the event of termination for convenience by Client, all fees otherwise due for the remainder of the then-current term shall become immediately due and payable to Consultant. The Parties agree these fees represent a fair estimate of Consultant’s damages and are not a penalty.

     

    (f)     Termination for Cause by Consultant. If Consultant terminates for cause under subsection (b), Client remains liable for all outstanding fees, expenses, and collection costs, but no additional ETF applies.

     

    (g)    Payment and Procedures. Consultant may charge Client’s payment method on file for ETFs.

     

    (h)   Effect of Termination. Upon termination or expiration, Consultant shall cease Services and may revoke system or deliverable access and each Party shall return or destroy Confidential Information upon request. Consultant shall have no obligation to transfer, migrate, or convert Client data without a separate transition agreement. Provisions that by their nature survive shall remain in effect.

     

    (i)     Collection and Enforcement. Client shall reimburse Consultant for all costs of collection, including reasonable attorneys’ fees, court costs, and interest at 1.5% per month (or the maximum permitted by law).

     

    (j)     Service Category Default. In the absence of a specified service category in the Sales Contract, Services shall be deemed Annual Services for purposes of ETF calculation.

     

    (11)                    Warranties.

    (a)    Services Warranty. Consultant warrants Services will be performed in a professional and workmanlike manner, consistent with generally accepted industry standards. Consultant disclaims all other warranties. Deliverables are provided “as is,” subject only to correction of material non-conformities identified within fifteen (15) days, per Section 5(b).

     

    (b)   Consultant Representations. 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 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. Client’s sole remedy is reperformance or, if not possible, refund of fees paid for non-conforming Services. Consultant’s liability for warranty claims is capped at fees paid for the affected Services in the prior twelve (12) months.

    (12)                                  Confidential Information.

    (a)    Definition of Confidential Information. Each Party and its officers, directors, employees, affiliates, representatives, and agents (“Representatives”) may provide information (the “Disclosing Party”) to the other (the “Receiving Party”). “Confidential Information” includes, without limitation:

    1.      The terms of this Agreement, any Sales Contract, and related negotiations;

    2.      Information about a Party’s products, business, and operations, including plans, finances, customers, suppliers, strategies, methodologies, processes, techniques, contracts, pricing, specifications, trade secrets, IP, and know-how;

    3.      Personnel information, compensation, benefits, personal data, claims data, and employee PII;

    4.      All other non-public information disclosed in oral, written, electronic, or other form.

    (b)   Confidential Information remains the property of the Disclosing Party. Consultant’s use of information relating to development or improvement of its own products is not restricted.

     

    (c)    Use and Standard of Care. The Receiving Party shall:

    1.      Keep Confidential Information strictly confidential;

    2.      Disclose only to Representatives who have a need to know and are bound by equivalent obligations;

    3.      Use the same degree of care as for its own confidential data (but not less than reasonable care);

    4.      Use the Confidential Information solely to perform under this Agreement;

    5.      Not decompile, disassemble, or reverse engineer Confidential Information.

    Consultant may use Client’s non-personal data in anonymized, aggregated form for analytics, benchmarking, and service improvement.

    (d)   Exceptions. Confidential Information excludes information that:

    1.      Was lawfully possessed by the Receiving Party before disclosure;

    2.      Becomes public without breach;

    3.      Is independently developed and verifiable;

    4.      Is obtained lawfully from a third party without restriction;

    5.      Is disclosed with prior written approval.

    (e)    Required Disclosures. If disclosure is legally required, the Receiving Party shall (unless prohibited by law) give prompt notice to the Disclosing Party and cooperate in seeking protective relief. Disclosure will be limited to what is legally required.

     

    (f)     No License. All Confidential Information disclosed to the Receiving Party or 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 shall not be deemed to grant any license, by implication or otherwise, to any Confidential Information or to any patents, patent applications, copyrights, trade secrets, or other intellectual property of the Disclosing Party.

    Immediately upon expiration or termination of this Agreement, or upon written request of the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information (including all copies) in its possession or in the possession of its Representatives.

    (g)    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 shall immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the unauthorized use or disclosure, and take all necessary steps to prevent any further breach. The Parties acknowledge that any breach or threatened breach of this Section may cause irreparable harm to the Disclosing Party for which monetary damages would be an inadequate remedy. Accordingly, the Disclosing Party shall be entitled, in addition to any other remedies available at law or equity, to seek injunctive and equitable relief to prevent or restrain such a breach, without the need to post bond or other security.

    Any award of relief shall include recovery of the Disclosing Party’s enforcement costs, including reasonable attorneys’ fees, court costs, and related expenses.

    (h)   Return and Survival. The Receiving Party shall promptly return or, at the Disclosing Party’s option, certify destruction of all copies of Confidential Information upon request, or within thirty (30) days following expiration or termination of this Agreement. Obligations under this Section survive for five (5) years after expiration or termination.

    (13)                                   Privacy of Personal Information.

    (a)              The Parties shall comply with the Data Processing Agreement available at https://www.hcmunlocked.com/data-processing-agreement, which is incorporated by reference. In the event of a conflict between this Agreement and the DPA, the DPA shall govern with respect to data privacy and protection matters.

     

    (b)             For matters not specifically addressed in the DPA, each Party is solely responsible for ensuring its own compliance with all applicable federal, state, and, as required, international privacy laws as they pertain to Personally Identifiable Information (“PII”).

     

    (c)              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 they pertain 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. Client shall be solely responsible for identifying all applicable privacy laws relevant to its business and for notifying Consultant in writing of any specific compliance requirements under such laws that apply to Consultant’s Services. Consultant shall have no obligation to independently verify the lawfulness of Client’s instructions or the applicability of any privacy laws to Client’s business.

     

    (d)             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 safeguards that would impose undue hardship or materially alter Consultant’s business operations. Such safeguards shall ensure that PII is collected, accessed, used, stored, processed, disposed of, and disclosed in compliance with applicable data protection laws and this Agreement.

     

    (e)              Consultant Covenants.  Consultant shall:

    (i)               keep all PII in strict confidence using an appropriate degree of care;

    (ii)              use and disclose PII solely to perform Services and not for Consultant’s own benefit or third-party benefit; and

    (iii)            not disclose PII except to personnel, approved subcontractors, or auditors with a need to know, or where legally required (with prior notice to Client where possible). Consultant may, however, use Client’s non-personally identifiable data in aggregated and anonymized form for benchmarking, analytics, and service improvement.

    (f)                              Client Responsibilities. Client acknowledges and agrees that:

    (i)               Client is solely responsible for determining whether Consultant’s security measures are appropriate for Client’s use of the Services;

    (ii)              Client shall not provide PII requiring protections beyond those agreed without Consultant’s prior written consent and payment of additional fees;

    (iii)            Client shall obtain all consents, provide all notices, and ensure lawful transfer of PII to Consultant;

    (iv)            Client shall promptly respond to any data subject requests referred to it;

    (v)              Client shall implement appropriate security measures for PII in its possession or control;

    (vi)            Client shall indemnify and hold harmless Consultant from claims arising from Client’s failure to comply with privacy laws or provide accurate legal requirements; and

    (vii)           Client shall be solely responsible for required notifications to individuals, regulators, or third parties in the event of a breach.

    (g)              Mutual Indemnification.  

    (i)               Client shall defend, indemnify, and hold harmless Consultant and its officers, directors, employees, affiliates, representatives, and agents from claims, damages, or liabilities (including reasonable attorneys’ fees and costs) arising from Client’s failure to obtain proper consents, comply with privacy laws, or fulfill its obligations under this Agreement.

    (ii)              Consultant shall defend, indemnify, and hold harmless Client from claims, damages, or liabilities arising directly from Consultant’s breach of its express obligations under this Section 13, subject to the limitations in subsection (f).

     

    (h)             Limitation of Liability. Consultant’s total aggregate liability for breach of this Section 13 shall not exceed the fees paid by Client to Consultant in the twelve (12) months preceding the claim. Consultant shall not be liable for breaches caused by Client’s failure to comply with its obligations or for incidents outside Consultant’s reasonable control or caused by third-party service providers not directly controlled by Consultant. Neither Party shall be liable for indirect, incidental, special, punitive, or consequential damages arising under this Section.

     

    (i)               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 and in no event later than forty-eight (48) hours after becoming aware; (ii) take reasonable steps to mitigate the effects of the breach; and (iii) cooperate with Client in Client’s fulfillment of legal obligations. Client remains solely responsible for required notifications to individuals, regulators, or third parties. Consultant’s reporting obligations are not an admission of fault or liability. Client must report any alleged breach of this Section in writing to Consultant within thirty (30) days of discovery, or such claim will be deemed waived.

     

    (j)               Applicability. This Section applies only to the extent that applicable federal, state, or international privacy laws regulate a Party’s conduct.

     

    (k)              Data Processing Agreement. The Parties shall comply with the Data Processing Agreement available at https://www.hcmunlocked.com/data-processing-agreement, which is incorporated by reference. In the event of a conflict between this Agreement and the DPA, the DPA shall govern with respect to data privacy and protection matters.

    (14)                    Cost of Living Adjustment.

    (a)      Annual Adjustments. Following the first anniversary of the Effective Date of each Sales Contract, and on each successive anniversary thereafter, Consultant may adjust monthly fees for Services listed in the Sales Contract to reflect cost of living adjustments. Annual fee adjustments apply during each Renewal Term as defined in Section 2. Adjustments will be based on the percentage increase for the twelve-month period ending ninety (90) days prior to the contract anniversary date, as published by the U.S. 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 otherwise agreed in writing by Client. Consultant will provide at least thirty (30) days’ written notice prior to implementation. Such adjustments shall be effective automatically without amendment to this Agreement or any Sales Contract.

     

    (b)     Index Substitution. If the specified index is discontinued or materially modified, Consultant may substitute a comparable index published by a governmental agency or reputable financial institution.

     

    (c)      Client Declination. If Client declines to accept an adjustment exceeding five percent (5%), Consultant may, upon sixty (60) days’ written notice, either: (i) continue providing Services at the maximum permitted adjustment of five percent (5%); or (ii) terminate the affected Services without penalty. If Client declines to accept the minimum two percent (2%) annual adjustment, Consultant may, upon thirty (30) days’ written notice, terminate the affected Services without penalty. Any such termination shall not constitute a breach by Consultant and shall not trigger termination-related remedies for Client.

    (15)                                   Ownership and Intellectual Property.

    (a)      Work Product. All work product originally created under this Agreement and expressly listed as a deliverable in an 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”), shall be the exclusive property of Client.

    Consultant shall retain ownership of all work product not expressly listed as a deliverable in the applicable Sales Contract. Consultant also retains the right to use general knowledge, skills, methodologies, templates, frameworks, processes, and expertise developed, improved, or acquired in the course of performing Services, provided such use does not disclose Client’s Confidential Information.

    At Client’s reasonable request, Consultant shall execute documents or take other actions necessary to perfect Client’s ownership rights in Work Product, provided such actions do not impose additional cost or liability on Consultant. For clarity, Work Product does not include Consultant’s Confidential Information, proprietary tools, methods, algorithms, software, code, databases, or pre-existing intellectual property.

    (b)     Intellectual Property Rights. All copyrights, patents, trade secrets, and other intellectual property rights in deliverables, pre-existing works, derivative works, and other developments made or conceived in the performance of Services shall remain the sole and exclusive property of Consultant.

    No Work Product created under this Agreement shall be deemed “works made for hire” under U.S. copyright law, and Client disclaims any ownership rights therein. For deliverables specifically identified in an applicable Sales Contract, Consultant grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use such deliverables solely for Client’s internal business purposes, conditioned on Client’s full payment and compliance with this Agreement.

    This Agreement does not grant Client any license to Consultant’s methodologies, frameworks, or proprietary tools, which must be licensed separately under mutually agreed terms (including additional fees). Consultant reserves all rights not expressly granted. Client shall not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, techniques, or know-how of Consultant’s deliverables or services.

    (c)      Consultant’s Freedom to Operate. Client acknowledges that Consultant provides similar solutions to multiple clients, and nothing in this Agreement restricts Consultant’s ability to perform similar services for others, even if deliverables are substantially similar to those provided to Client.

    Any improvements, enhancements, or modifications to Consultant’s methodologies, processes, or frameworks arising during the 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 its operations, products, and services, provided Client’s Confidential Information is not disclosed. Nothing herein shall prevent Consultant from pursuing similar engagements or developing competing products or services, and Client expressly waives any claims related to such activities.

    (d)     Non-Competition and Knowledge Protection. Client acknowledges and agrees that:

    (i)               Any knowledge, expertise, methodologies, or insights developed by Consultant during the provision of Services, even if developed while working with Client’s data or business processes, constitutes Consultant’s intellectual property;

    (ii)              For a period of two (2) years following termination of this Agreement, Client shall not develop, create, or commission the development of any software, system, or service that substantially replicates or competes with Consultant’s proprietary methodologies, processes, or solutions to which Client gained exposure through the Services;

    (iii)            Client shall not use any knowledge, insights, or understanding gained from Consultant’s Services to reverse-engineer, replicate, or develop competing solutions, either internally or through third parties; and

    (iv)            Any violation of this provision shall entitle Consultant to injunctive relief and liquidated damages equal to the greater of: (1) $250,000; or (2) the total fees paid by Client to Consultant under this Agreement, without prejudice to Consultant’s right to seek actual damages if greater.

    (16)                                  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 from: (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 is conditioned upon: (a) Client promptly notifying Consultant in writing of any claim within five (5) business days of becoming aware of it; (b) Consultant having sole control of the defense and settlement; (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 indemnity 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 claims arising from: (1) Client’s specifications, materials, or instructions; (2) modifications made by anyone other than Consultant; (3) combinations with Client’s or third-party products; (4) Client’s continued use after notice of an alleged infringement; (5) Client’s breach of this Agreement; (6) use outside intended scope; (7) failure to implement updates that would have avoided the Claim; (8) data or content provided by Client; (9) compliance with industry standards; (10) Client’s refusal to implement recommended modifications; or (11) any claim otherwise limited under this Agreement.

    For covered infringement claims, 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 applicable fees. This subsection states Client’s exclusive remedy for infringement claims.

    (b)     By Client. Client shall defend, indemnify, and hold harmless Consultant and its Affiliates, and their respective officers, directors, employees, contractors, and agents (“Consultant Indemnitees”) against all Claims, damages, fines, penalties, and expenses (including attorneys’ fees) arising out of: (i) any act, error, omission, or breach of this Agreement by Client or its personnel; (ii) Client’s violation of any law applicable to its business; (iii) infringement, misappropriation, or violation of any intellectual property rights arising from Client’s materials, instructions, or content; (iv) Client’s products, services, or operations; (v) misuse of the Services or Work Product; (vi) inaccurate or incomplete information provided by Client; (vii) claims by Client’s employees, contractors, or customers; (viii) regulatory actions related to Client’s business; (ix) security incidents or breaches affecting Client’s systems not directly caused by Consultant’s gross negligence; or (x) Client’s failure to implement security measures or follow Consultant’s recommendations.

    Client’s indemnification obligations apply regardless of the form of action and survive termination indefinitely. Client shall advance all defense costs within fifteen (15) days of invoice. Client may not settle claims without Consultant’s prior written consent.

    (c)      Limited Application. These indemnities apply only to third-party claims. They do not apply to: (i) claims between the Parties or their Affiliates; (ii) claims that could have been brought directly under this Agreement; or (iii) claims for consequential, indirect, punitive, or exemplary damages.

    Direct claims between the Parties shall be governed by this Agreement and subject to the limitation of liability provisions. Consultant’s total liability under this Agreement shall not exceed amounts paid by Client in the twelve (12) months preceding the event giving rise to the claim.

    (d)     Indemnification Process. As a condition of indemnification, an Indemnitee shall: (i) notify the indemnifying Party within five (5) business days of a potential claim; (ii) provide all requested documentation; (iii) refrain from admissions or settlements without consent; (iv) allow the indemnifying Party complete control of the defense and settlement; (v) provide continuous cooperation; and (vi) use counsel selected by the indemnifying Party unless a conflict exists.

    Failure to meet these conditions relieves the indemnifying Party to the extent prejudiced. Consultant may settle claims at its sole discretion when it is the indemnifying Party. If Client fails to defend a claim, Consultant may assume the defense at Client’s expense.

    (e)      Exclusive Remedy. This Section states the entire indemnification obligation of the Parties. The limitations and exclusions herein apply even if an exclusive remedy fails of its essential purpose.

    (17)                                  Limitation of Liability.

    (a)      Exclusion of Types of Damages. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION 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 FORM OF CLAIM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

     

    (b)     Liability Cap. Except for (i) Client’s liability for payments due to Consultant under this Agreement or any Sales Contract; (ii) damages arising from either Party’s breach of confidentiality obligations; (iii) claims resulting from gross negligence, fraud, or willful misconduct; (iv) infringement claims involving deliverables provided by Consultant; or (v) indemnification obligations under Section 16, the total cumulative liability of either Party under this Agreement shall be limited to the lesser of: (1) the aggregate fees actually paid by Client to Consultant in the six (6) months immediately preceding the event giving rise to the claim; or (2) one hundred thousand dollars ($100,000). Nothing herein shall limit liability for bodily injury, death, or damage to tangible personal property proximately caused by gross negligence, fraud, or willful misconduct.

     

    (c)      No Consultant Liability for Certain Claims. In addition to the limitations above, Consultant shall have no liability for claims, losses, or damages arising from: (i) actions or omissions requested, approved, or ratified by Client; (ii) Client’s decisions or inactions based on Consultant’s advice or services; (iii) failure to act where Client authorization was required but not provided; (iv) failure by Client to provide accurate and timely information; (v) issues arising from services performed by prior providers; (vi) third-party products, software, or services; (vii) force majeure events; (viii) changes in applicable laws, regulations, or industry practices; (ix) implementation of Services by Client or third parties; (x) Client’s failure to implement Consultant’s recommendations or corrections; (xi) Client’s breach of this Agreement; (xii) Client’s unauthorized use of the Services; (xiii) failure to implement security measures or follow Consultant’s recommendations; or (xiv) Client’s failure to comply with applicable laws.

     

    (d)     Disclaimer of Liability for Business Decisions. Client acknowledges and agrees that: (i) Consultant acts solely in an advisory capacity and all business decisions remain Client’s sole responsibility; (ii) Client is responsible for the accuracy and completeness of information provided to Consultant; (iii) Client is solely responsible for evaluating the suitability of Consultant’s advice, guidance, or services; (iv) Consultant may rely on third-party data or information without independent verification; (v) Client assumes all risks associated with decisions or actions based on Consultant’s services; (vi) Consultant makes no warranties or guarantees as to the results of the Services; and (vii) Client has not relied on any representations not expressly set forth in this Agreement.    

     

    Consultant does not practice law or provide legal advice. Client’s use of the Services does not create an attorney-client relationship, and Client is encouraged to seek independent legal counsel regarding legal matters.    

      

    (18)                    Relief Events.

    (a)              Excused Performance. If Consultant fails to or is unable to perform any obligations under this Agreement or any Sales Contract due to any of the following (“Relief Events”), Consultant shall be automatically excused from performance and not deemed in breach:

    1.      Client’s failure to perform any condition required for Consultant’s services or deliverables;

    2.      Client’s failure to comply with its obligations under this Agreement or any Sales Contract, including timely payment of all undisputed fees;

    3.      Client’s Designated Representative failing to cooperate in a timely or reasonable manner;

    4.      Incorrect, incomplete, or delayed information, data, or assumptions provided by Client;

    5.      Client’s failure to provide timely decisions, approvals, or acceptances;

    6.      Changes in applicable laws, regulations, or industry standards;

    7.      Force Majeure Events;

    8.      Third-party actions or inactions outside Consultant’s reasonable control;

    9.      Undocumented scope changes; or

    10.   Any other circumstance materially impeding Consultant’s performance.

    (b)             Remedies. Upon a Relief Event that materially impacts performance, Consultant shall notify Client within thirty (30) days, describing anticipated consequences and whether increased costs or delays are expected. If not cured or revised to the mutual satisfaction of both Parties within thirty (30) days, Consultant may, at its sole discretion, terminate the affected Sales Contract or portion thereof without liability. Client remains obligated to pay for all Services performed, deliverables provided, and any wind-down, transition, or committed costs incurred.

    (19)                     Force Majeure.

    (a)              Events Beyond Control. Except for payment obligations, neither Party shall be liable for failure or delay in performing obligations under this Agreement or any Sales Contract due to events beyond its reasonable control (“Force Majeure Events”), including but not limited to: terrorist attacks, war, civil unrest, fire, explosion, epidemic or pandemic (including COVID-19 and variants), quarantine restrictions, severe weather, natural disasters, strikes, labor shortages, lockouts, interruptions of telecommunications or utilities, malicious cyber activity (including ransomware or denial of service attacks), unlawful acts of third parties, or changes in government laws or regulations.

     

    (b)             Suspension and Termination. Where a Force Majeure Event impacts Services or deliverables, the affected Party’s performance shall be suspended for the duration of the Event. If the Event continues for more than thirty (30) days, Consultant may terminate this Agreement and/or any affected Sales Contract without penalty. Consultant shall remain entitled to payment for all Services rendered, expenses incurred, and committed or transition costs, but no refunds shall be owed for Services already performed.

     

    (c)              Notice and Mitigation. The affected Party shall notify the other promptly after the onset of a Force Majeure Event, describing its nature, expected duration, and mitigating steps being taken. The affected Party bears the burden of proof and shall use reasonable efforts to mitigate effects, provided Consultant shall not be required to incur material additional costs or deliver services beyond the scope of the Sales Contract.

    (20)                    Mutual Non-Solicitation.

    (a)              Restrictions. During the term of this Agreement and for two (2) years following its termination, neither Party shall directly or indirectly solicit or induce any employees, independent contractors, or consultants of the other Party to leave their employment or engagement.

     

    (b)             Remedies. In the event of a breach of this Section, the non-breaching Party shall be entitled, in addition to any other remedies available at law or equity, to seek injunctive or equitable relief without the need to post bond.

     

    (c)              Exceptions.

    The restrictions in this Section shall not apply to:

    (1)   General job postings or solicitations not specifically directed at the other Party’s personnel;

    (2)   Individuals who respond to such general solicitations; or

    (3)   Individuals who independently seek employment or engagement without solicitation.

    (d)             Consultant Personnel Protection. Notwithstanding the foregoing, Client shall not hire or engage any employee, independent contractor, or consultant of Consultant who had direct contact with Client or access to Client’s Confidential Information during the term of this Agreement and for one (1) year thereafter, without Consultant’s prior written consent.

    (21)                    Dispute Resolution.

    (a)              Covered Disputes. The procedures in this Section are the exclusive means for resolving any dispute or disagreement between the Parties, their affiliates, successors, or permitted assigns, arising out of or related to this Agreement or any Sales Contract, including interpretation or application (“Covered Disputes”). Any attempt to resolve a dispute outside this process constitutes a material breach.

     

    (b)             Internal Efforts. The Parties shall first attempt to resolve Covered Disputes in good faith through appropriate management channels. The Party raising a dispute must provide written notice describing it in reasonable detail. Internal negotiations shall be completed within fifteen (15) days, during which obligations under this Agreement continue, except that Consultant may suspend Services if the dispute involves nonpayment or material breach. If unresolved, the dispute shall escalate to senior executives (Vice President level or above), who shall meet within ten (10) business days.

     

    (c)              Mediation. If internal efforts fail, the Parties shall engage in confidential, non-binding mediation with a mutually agreed professional mediator before commencing court action. Mediation shall occur in Palm Beach County, Florida, or virtually, and be completed within sixty (60) days unless extended in writing. Each Party shall bear one-half (½) of mediator fees and its own attorneys’ fees. Consultant need not mediate if the dispute involves (i) nonpayment of fees, (ii) Client’s breach of confidentiality, or (iii) protection of Consultant’s intellectual property.

     

    (d)             Class and Collective Actions. To the fullest extent permitted by law, Covered Disputes may not be brought or maintained as class, collective, or representative actions. Neither Party may serve or participate as a member or representative of such an action or receive recovery through one. If any portion of this Section is found unenforceable, it shall be severed, and the remainder enforced.

     

    (e)              Governmental Proceedings. Nothing in this Section restricts a Party from (i) initiating or cooperating with a Governmental Agency proceeding, (ii) testifying or providing evidence in judicial or legislative proceedings, or (iii) making disclosures protected by whistleblower laws. Each Party waives the right to receive individual monetary relief from the other resulting from a Governmental Agency proceeding, though a Party may accept statutory awards for providing information to such an agency.

     

    (f)               Attorneys’ Fees. The prevailing Party in any dispute may recover reasonable attorneys’ fees, costs, and expenses, including appeals. If Consultant initiates proceedings to collect unpaid fees or expenses, Client shall bear all collection costs, including attorneys’ fees, regardless of prevailing party status. For these purposes, “prevailing Party” means the Party succeeding on a significant portion of its claims or defenses.

     

    (22)                     Miscellaneous.

    (a)              Notices. All notices, requests, and other communications (except service of legal process) must be in writing and are validly given when: (i) hand-delivered, (ii) delivered by a recognized commercial overnight courier, (iii) sent by registered or certified first-class mail, postage prepaid, return receipt requested, to the address set forth in the Agreement preamble (or any other address designated in writing), or (iv) sent via electronic mail to an email address designated by the other Party for receipt of notices.

     

    (b)             Execution; Authority. This Agreement is not binding until expressly accepted in writing by Consultant, which acceptance may be granted or withheld in Consultant’s sole discretion. Consultant may revoke acceptance upon discovery of any misrepresentation, omission, or other material issue, including but not limited to: (i) lack of signatory authority; (ii) unauthorized changes to Agreement terms; (iii) incomplete or mismatched signatures; (iv) adverse credit or payment history; or (v) any other reason Consultant deems material.
    In the event of a conflict between this Agreement and any Sales Contract, this Agreement shall control unless the Sales Contract (i) expressly references this Section, and (ii) is approved in writing by an authorized officer of Consultant.

     

    (c)              Entire Agreement. This Agreement represents the entire understanding between the Parties and supersedes all prior understandings or agreements, oral or written, relating to the Services. It applies to all Sales Contracts previously undertaken but not yet completed as of the Effective Date. In the event of a direct conflict between this Agreement and a Sales Contract, the Sales Contract controls. Any modification or amendment must be in a writing signed by authorized representatives of both Parties. By executing this Agreement, Client acknowledges and agrees that it has accessed, read, and understood the MSA and the incorporated DPA. No other terms shall modify this Agreement unless expressly set forth in a written amendment signed by authorized representatives of both Parties.

     

    (d)             Waiver. A waiver of any provision must be in writing and signed by the waiving Party. No waiver shall operate as a waiver of any other or subsequent failure. Failure or delay in exercising any right, remedy, or power shall not operate as a waiver.

     

    (e)              Severability. If any provision of this Agreement is held invalid, unenforceable, or void, the remainder shall remain in full force and effect.

     

    (f)               Governing Law and Venue. This Agreement and all Sales Contracts shall be governed by Florida law, excluding conflict of laws principles. Subject to the dispute resolution procedures in Section 21, exclusive venue lies in the state and federal courts of Palm Beach County, Florida. Each Party submits to such jurisdiction, waives any objection to venue, and waives the right to a jury trial. Any claim must be filed within one (1) year after it arose, or it is forever barred.

     

    (g)              Assignment. This Agreement may not be assigned by Consultant without Client’s prior written consent (not to be unreasonably withheld). Client may assign in connection with a merger, sale of substantially all assets, or corporate restructuring with Consultant’s prior written consent (not to be unreasonably withheld). Consultant may assign to any affiliate or successor without Client’s consent.             

     

    (h)             Counterparts and Signatures. This Agreement may be executed in counterparts, each constituting an original and together forming one Agreement. Electronic signatures (including via email or other electronic means) are deemed originals.

     

    (i)               Insurance. Client shall maintain, at its own expense, comprehensive general liability, professional liability, and other appropriate insurance with limits of not less than $2,000,000 per occurrence, and provide certificates of insurance naming Consultant as an additional insured upon request. Consultant shall maintain such insurance as it deems appropriate for its business. Client’s insurance is primary and non-contributory with respect to any insurance maintained by Consultant.

     

    (j)               Survival. The following provisions survive termination or expiration: Sections 3 (Warranty), 4 (Confidential Information), 5 (Privacy), 7 (Ownership), 8 (Indemnification), 9 (Limitation of Liability), 12 (Non-Solicitation), 13 (Dispute Resolution), 14 (Miscellaneous), and any others that by their nature should survive.

     

    (k)              Interpretation. This Agreement is construed without regard to any presumption against the drafter. Headings are for reference only. “Including” means “including without limitation.” Terms such as “herein,” “hereof,” “hereto,” and “hereunder” refer to the Agreement as a whole. “Capitalized terms used in this Agreement but not defined in the body shall have the meanings assigned to them in Appendix A (Definitions).”

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Appendix A: Definitions

    For purposes of this Agreement, the following terms shall have the meanings set forth below:

    Affiliate means, with respect to a Party, any entity that controls, is controlled by, or is under common control with that Party. “Control” means the direct or indirect ownership or authority to direct the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.

    Agreement means collectively: (i) the HCM Unlocked® LLC Master Service Agreement, including these Terms and Conditions; (ii) any Sales Contracts executed by the Parties and incorporated by reference; (iii) the Data Processing Agreement available at https://www.hcmunlocked.com/data-processing-agreement, as updated by Consultant from time to time; and (iv) any schedules, exhibits, addenda, amendments, or change orders executed by the Parties in connection with the foregoing.

    Applicable Laws means U.S. federal, state, and local laws, rules, and regulations related to cybersecurity, data protection, and privacy that: (i) are expressly applicable to Consultant in its role as a service provider in delivering Services under this Agreement; (ii) are identified in writing by Client to Consultant prior to execution of this Agreement or any applicable Sales Contract (if specific to Client’s business); (iii) are in effect as of the Effective Date of this Agreement; and (iv) apply to the specific Services being provided. “Applicable Laws” does not include (a) laws applicable solely to Client in its capacity as a business or data controller; (b) laws that would require Consultant to fundamentally alter its business operations or Services; (c) laws of jurisdictions outside the United States unless Consultant has expressly agreed in writing to comply; or (d) laws enacted after the Effective Date unless Consultant has expressly agreed in writing to comply.

    Change Order means a written amendment to a Sales Contract or this Agreement executed by authorized representatives of both Parties.

    Claim means any civil, criminal, administrative, regulatory, or investigative action, suit, or proceeding brought or threatened by a Third Party, including a governmental authority. “Claim” does not include any matter that: (i) is frivolous or vexatious as reasonably determined by Consultant; (ii) arises from Client’s failure to comply with its obligations under this Agreement; (iii) arises from Client’s specifications or instructions; or (iv) could have been avoided by Client’s implementation of Consultant’s reasonable recommendations.

    Data Processing Agreement means the agreement available at https://www.hcmunlocked.com/data-processing-agreement, as updated by Consultant from time to time, which is incorporated into this Agreement by reference.

    Deliverables means, as further specified in an applicable Sales Contract, the results of Services to be provided by Consultant to Client, including output produced in electronic, written, or verbal form. Deliverables shall only include those items expressly identified as “deliverables” in the applicable Sales Contract. For clarity, Deliverables do not include Consultant’s pre-existing intellectual property, methodologies, processes, frameworks, software, tools, algorithms, databases, or know-how, even if incorporated into or used in creating the Deliverables.

    Dispute means any dispute, controversy, or Claim (as defined herein), including situations requiring the Parties to agree on additions, deletions, or changes to terms, conditions, or Charges, arising out of or relating to this Agreement.

    Effective Date means the date on which Consultant begins to provide Services under a Sales Contract, as agreed upon by the Parties. A separate Effective Date may apply to different Services or Sales Contracts.

    Execution Date means the date of execution of a Sales Contract (including any Statement of Work) by the Parties, as set forth on the initial page thereof.

    Exhibit or Schedule means an attachment to this Agreement or to a Sales Contract, as such attachment may be amended from time to time. All Exhibits and Schedules referenced in this Agreement or any Sales Contract are incorporated by reference and form an integral part of the Agreement.

    Governmental Authority means any federal, state, local, or foreign government, or any political subdivision thereof; any agency, commission, board, tribunal, court, or other instrumentality of such government; or any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government.

    Intellectual Property Rights means all intellectual property rights existing under any law worldwide, including rights under patent, copyright, semiconductor chip protection, moral rights, trade secret, trademark (together with goodwill), unfair competition, publicity, and privacy laws, as well as all other proprietary rights. Intellectual Property Rights include all applications, renewals, extensions, restorations, and similar protections now or hereafter in effect, including provisional, divisional, continuation, continuation-in-part, reissue, reexamination, and supplementary filings. Consultant’s Intellectual Property Rights include, without limitation, all rights in Consultant’s methodologies, processes, frameworks, software, tools, algorithms, databases, and know-how, whether developed prior to or during the performance of Services, together with any improvements, enhancements, or modifications.

    Law means any applicable law, statute, code, rule, regulation, ordinance, reporting or licensing requirement, or other pronouncement having the effect of law, whether arising under common law, statutory law, or regulatory authority, of the United States or any foreign country, or any political subdivision thereof, including those promulgated, interpreted, or enforced by a Governmental Authority.

    Losses means any judgments, settlements, awards, losses, charges, liabilities, penalties, interest, claims (including Taxes and related interest and penalties), and all related reasonable costs, expenses, and charges, including attorneys’ fees and internal/external costs of investigation, litigation, proceedings, discovery, settlement, or enforcement.

    Person means an individual, corporation, limited liability company, partnership, trust, association, joint venture, unincorporated organization, or other entity of any kind, including any Governmental Authority.

    Personally Identifiable Information (PII) means any information that identifies or may be used to identify, locate, or track an individual, including names, addresses, telephone numbers, email addresses, financial account information, government identifiers, and other similar information, as well as information about Client employees, customers, or prospects generated, processed, or disclosed in connection with the Services. PII includes both individual data and aggregated data if an individual can be identified from it.

    Sales Contract means a statement of work executed by the Parties that describes the Services to be provided by Consultant, together with any schedules, exhibits, or attachments incorporated therein.

    Services means: (i) the services, functions, responsibilities, activities, tasks, and projects to be performed by Consultant as set forth in this Agreement and any Sales Contract, as they may evolve, be supplemented, or be enhanced during the Term; (ii) any functions, responsibilities, activities, tasks, or projects not specifically described but required for the proper performance of the Services, or that are an inherent part of, or necessary subpart of, the Services, unless expressly excluded; and (iii) services of a nature and type that would ordinarily be performed within the Client’s industry sector, but only to the extent specifically described in the Agreement or an applicable Sales Contract. Any services not expressly specified in a Sales Contract are outside the scope of this Agreement and may be subject to additional fees if requested by Client and agreed to by Consultant.

    Software means computer programming code consisting of instructions or statements in source code or object code form, together with related documentation and supporting materials, in any form or medium.

    Tax means federal, state, and local sales, use, or other similar transaction-based taxes or fees, however designated or imposed. “Tax” does not include any taxes measured by net or gross income, gross receipts, capital stock, or net worth, nor any franchise or income-based taxes.

    Third Party means any business or entity other than Client, Consultant, or their respective Affiliates.

    Third Party Agreements means agreements under which Consultant has financial, management, operational, use, access, or administrative responsibility in connection with providing the Services, and pursuant to which Client has contracted with a Third Party Provider for products, software, or services to be used in connection with the Services. Each applicable Sales Contract shall include a “Third Party Agreements” schedule, updated by the Parties as needed to reflect current agreements.

    Third Party Provider means a business or entity, other than Client, Consultant, or their respective Affiliates, that provides products, software, or services under a Third Party Agreement.

    Trade Secrets means, with respect to a Party (or a designated group including such Party), information related to the business, services, or operations of the disclosing Party or such group, or of a Third Party, that: (a) derives actual or potential economic value from not being generally known to or readily ascertainable by persons who could derive economic value from its disclosure or use; and (b) is the subject of reasonable efforts under the circumstances to maintain its secrecy. Trade Secrets include, without limitation, technical and non-technical data, formulas, patterns, compilations, computer programs and software, devices, drawings, processes, methods, techniques, designs, programs, financial plans, product plans, and lists of actual or potential customers or suppliers. Information may be identified as confidential by markings, by identification during oral presentations, or by the manner in which it is treated as confidential or secret.

    Work Product means all work product originally created by Consultant under this Agreement and expressly identified as a deliverable in an applicable Sales Contract, together with all concepts, inventions, ideas, patent rights, data, materials, trademarks, and copyrights specifically developed for Client and paid for in full. Work Product does not include: (i) Consultant’s pre-existing intellectual property; (ii) Consultant’s methodologies, processes, frameworks, software, tools, algorithms, databases, or know-how, even if incorporated into or used to create the Work Product; (iii) any improvements, enhancements, or modifications to Consultant’s intellectual property developed during the performance of Services; (iv) Consultant’s general knowledge, skills, experience, ideas, concepts, know-how, and techniques acquired during the performance of Services; (v) any suggestions, enhancement requests, or feedback provided by Client regarding Consultant’s services or products; or (vi) any work product not expressly listed as a deliverable in the applicable Sales Contract.