Unleashed MASTER CONSULTING SERVICES AGREEMENT
VERSION DATE: MAY 1, 2020
Unleashed, LLC, a Delaware limited liability company with its principal office located at 8825 Stanford Boulevard, Suite 105, Columbia, Maryland 21045 (“Unleashed”) provides a variety of software and marketing services including, without limitation, software development, consulting, Web Site and Web Application development, marketing and business communications, web site hosting, data security protection and other related services (collectively, “Services”). Unleashed is available to provide Services to businesses and organizations as specifically identified on a Statement of Work (such entities, as specifically named, the “Client”). As used herein, Unleashed and Client are hereinafter collectively called the “Parties” and individually called a “Party”). With respect to any Support Package or Growth Package (as such terms are defined in Section 4.2), the Services to be provided to Client hereunder are set forth in the Client Proposal attached hereto and incorporated herein by this reference (“Client Proposal”). Client may subscribe for additional Services by signing a Statement of Work (“Statement of Work”) which, when signed by the Parties, shall also be attached hereto and incorporated herein by this reference. The Client Proposal and any related Statement of Work signed by the Parties are hereinafter collectively called the “Work Orders” and individually called a “Work Order.” The specific scope and nature of the Services to be provided hereunder shall be as described on the applicable Work Order. Each Work Order shall not be binding until signed on behalf of the Party to be bound. Each Work Order may provide, among other things: (a) a description of the type of Services to be provided; (b) a reference to this Agreement; (d) a description of Client’s obligations (if any) regarding the Services; and (c) any special agreements between Client and Unleashed regarding the applicable Services. Any work product generated by Unleashed hereunder while creating or delivering the Services is hereinafter called "Work Product." The terms and conditions set forth on any Work Order shall be binding on the Parties only with respect to the Services referenced on such Work Order. Each Work Order shall constitute a separate binding agreement with respect to the applicable Services stated thereon, which agreement shall incorporate all of the terms and conditions stated herein. If there is a direct conflict between any Work Order and this Agreement, the terms hereof shall control (except only for issues relating to payment terms, in which case the Work Order shall control).
2. Work Product Development.
2.1 Delivery Dates.
In providing the Services, Unleashed may identify to Client target delivery dates for the delivery of any applicable Services. Such dates are estimates and subject to reasonable revision. Client’s failure or delay in providing any documents, information or support needed for Unleashed to deliver the agreed-upon Services may result in a delay in the delivery of the same.
Work Product may include certain materials created by Unleashed which include, without limitation, computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text that it has developed prior to or outside the scope of this Agreement (collectively, “Unleashed Content”). The Work Product may also incorporate the materials, if any, provided by Client, including, without limitation, trade or service marks, images, illustrations, graphics, multimedia files and/or text (“Client Content”). Unleashed may also incorporate into the Work Product computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text licensed from third parties, whether or not under an open source license or are within the public domain (“Third Party Content”). Client assumes full and sole responsibility for ensuring that all Client Content and use of all Work Product is at all times in compliance with all applicable laws and regulations, and, except as warranted by Unleashed, does not violate the rights of others.
2.3 Development License.
As partial consideration for Unleashed’ performance of all obligations under this Agreement, Client hereby grants to Unleashed, and Unleashed accepts from Client, a non-exclusive, royalty-free license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative works from and use the Client Content solely in connection with providing the Services during the term of the applicable Work Order(s).
Unless otherwise stated, Client shall be deemed to have accepted all software development-related Services delivered hereunder unless within fifteen (15) business days of Client's receipt of the Work Product it provides Unleashed with a written notice of its rejection of such Work Product delivered hereunder (“Rejection Notice”). Any Rejection Notice must be for software developed by Unleashed hereunder and must identify in detail a reproducible programming error or design item that does not materially conform to the specifications or performance requirements set forth on the applicable Work Order. Any Rejection Notice must provide sufficient detail to enable Unleashed to address the issue in question, and Client bears the burden to reasonably establish the basis for its rejection.
2.5 Scope Changes.
For Services billed as time and materials work under Section 4.1 below, requests by Client for revisions to any delivered Work Product (other than in the case of a Rejection Notice) shall be considered outside the scope of the applicable Work Order. Upon the written request of Client (such request, a “Change Request”), Unleashed shall evaluate the Change Request and submit to Client for Client’s acceptance, a written estimate of additional fees for making the requested revisions. If Client agrees in writing to Unleashed’ estimate, the proposed revisions and any fees required to make the revisions shall be considered part of this Agreement and the applicable Work Order. For Services billed as part of a Support Package or a Growth Package under Section 4.2, Unleashed’ assigned Project Manager will notify Client’s designated representative via e-mail if and when the number of hours needed to deliver the projected Services are estimated to exceed the projected number of hours purchased under the Client’s Support Package or Growth Package. Such notice will identify the anticipated additional cost and time needed to complete the Services as proposed and whether Unleashed is available and qualified to complete the contemplated additional Services: (i) at its standard rates; or (ii) at its then-current High Priority Rates. Client’s representative shall then respond via e-mail to approve or reject the proposed modification to the Client’s Support Package or Growth Package. Such e-mail exchange, when completed, shall constitute an amendment to the applicable Work Order(s).
Client’s unwillingness to cooperate or delay in delivering information or documents or responses as needed to address a Rejection Notice or Change Request will affect the deadlines, cost and ability of Unleashed to deliver the applicable Work Product or Services.
2.7 Designated Contact.
Client's designated contact specified in the Work Order has complete authority to make decisions on behalf of Client with respect to the Work Product and the Services including, without limitation, the approval of any element of Work Product and all issues regarding any Rejection Notice or Change Request.
As used in this Agreement, the terms “deliver” or “delivery” of any Web Site or Web Application constituting Work Product shall mean to make such Web Site accessible via the Internet, via FTP or via a CD-ROM in a manner set forth on the applicable Work Order.
3. Term and Termination.
The term of this Agreement (“Term”) will commence on the Effective Date and will continue until this Agreement is terminated in accordance with this Section 3; provided that, with respect to the provision of any particular Services, the Term hereunder may be set forth on the applicable Work Order. For any Services to be provided as part of a Support Package or a Growth Package under Section 4.2, except as otherwise indicated on the applicable Work Order(s), the applicable term for the provision of such Services shall be twelve (12) months, commencing on the date on which the Parties sign the applicable Work Order. WITH RESPECT TO SUPPORT PACKAGES AND GROWTH PACKAGES, THE TERM OF THE APPLICABLE WORK ORDER SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS OF ONE (1) YEAR, UNLESS EITHER PARTY DELIVERS TO THE OTHER PARTY A WRITTEN NOTICE OF ITS INTENT NOT TO RENEW SUCH WORK ORDER THIRTY (30) DAYS BEFORE EXPIRATION OF THE THEN-CURRENT TERM FOR SUCH WORK ORDER.
For Services identified on a Work Order that are being provided on a time and materials basis pursuant to Section 4.1 below, either Party may terminate the delivery of such Services for any reason upon 90 days written notice to the other Party. For Services being provided as part of a Support Package or a Growth Package pursuant to Section 4.2, Client may terminate such Services for any reason during an initial “trial period” of 90 days after the applicable first Work Order is signed by both Parties. Either Party may terminate this Agreement if the other Party materially breaches any provision of this Agreement, provided that: (i) the non-breaching Party first shall provide written notice to the breaching Party describing the breach and identifying the section of this Agreement breached, and (ii) the breach remains uncured for thirty (30) days after delivery of such notice. Either Party may terminate this Agreement immediately by written notice to the other Party, in the event of the insolvency, bankruptcy, general assignment for the benefit of creditors of the non-notifying Party, or if the non-notifying Party becomes the subject of any proceeding commenced under any statute or law for the relief of debtors or if a receiver, trustee or liquidator of any property or income of such Party is appointed.
3.3 Obligations upon Termination.
Upon termination of this Agreement, for Services identified on a Work Order that are being provided on a time and materials basis pursuant to Section 4.1 below Client shall promptly pay to Unleashed all amounts then owed for all Services rendered hereunder at the rates in effect under each applicable Work Order (or, if the rates are not provided in the applicable Work Order, then pursuant to the then-current hourly rates for the Unleashed personnel providing the applicable Services), whereupon Unleashed shall deliver to Client a copy of all its Work Product for any software development Services rendered hereunder if the form such work existed at the time this Agreement was terminated. The current standard hourly rates for Unleashed’ personnel for all services is attached hereto (“Rate Schedule”). If Unleashed terminates Services being provided as part of a Support Package or Growth Package pursuant to Section 4.2 for a reason not related to Client’s breach hereof, Unleashed shall refund to Client all prepaid Service fees for the then-current remainder of the applicable Work Order. For a termination of Support or Growth Package Services under any other circumstances, Unleashed shall NOT refund any fees received from Client. Immediately upon termination hereof under any circumstances, each Party shall return to the other Party all Confidential Information (as defined below). Upon the termination or expiration of this Agreement for any reason, Sections 7, 8, 10 and 11 hereof shall survive.
Services shall be provided either: (a) on a time and materials basis; or (b) as part of a Support Package or Growth Package, as specified in the Work Order for the subject Services.
4.1 Time and Materials.
To the extent specified on a Work Order or otherwise expressly referenced hereunder, Services shall be provided on a time and materials basis. In such event, Client will be invoiced each month for all time spent and all expenses incurred on Client’s project through such month at the then effective-current billing rates for Unleashed Personnel. Unleashed reserves the right to revise the Rate Schedule from time to time. During the Term, copies of Unleashed most current Rate Schedule shall be made available to Client upon request.
4.2 Support Package; Growth Package
Unless otherwise specified hereunder or on a Work Order, all Services stated in the Client Proposal shall be provided on a monthly retainer basis under a Unleashed’ Support Package or Growth Package. Unleashed shall invoice Client for such Services one month in advance at the beginning of each month. For example, if Services under a Support Package or a Growth Package are to commence on May 1st, Unleashed shall bill Client upon signing the Work Order for the first month of the Services to be provided and its shall also invoice Client on May 1st for the Services to be rendered during June. Client must pay each invoice within 30 days after the invoice date. Any overpayments will be applied to the next billing cycle. Reserved but unused hours in any month will NOT be rolled over into future billing cycles, except in the event that Unleashed is unable to deliver its reserved hours to Client in accordance with this Agreement. The stated invoice shall identify the number or reserved hours of Services from Unleashed’ personnel, and Client shall pay the stated invoice, even if the number of hours actually provided is less than the number of hours reserved. The term for Services to be provided on a monthly retainer basis, the nature of the Services to be provided on such basis, and the number of hours per month to be reserved by Unleashed for the provision of such Services all shall be set forth on the applicable Work Order. Unleashed reserves the right to revise the Rate Schedule from time to time. Without limiting the foregoing, Unleashed may increase the Rate Schedule fees on an annual basis by no more than 3% to reflect its increased costs of doing business. IF FOR ANY REASON (OTHER THAN FOR Unleashed’ BREACH HEREOF OR IN ACCORDANCE WITH SECTION 3.2(c)), CLIENT TERMINATES ANY SERVICES TO BE PROVIDED HEREUNDER ON A MONTHLY RETAINER BASIS, CLIENT SHALL PROMPTLY BE INVOICED FOR AND PAY FOR ALL SERVICES THAT WOULD OTHERWISE BE BILLED DURING THE BALANCE OF THE APPLICABLE WORK ORDER TERM UNDER THE APPLICABLE SUPPORT AND GROWTH PACKAGE.
4.3 Payment Terms.
Unless otherwise specified on the invoice or on the applicable Work Order(s), payment shall be due within thirty (30) days of receipt of the date of the invoice. Client shall be responsible for all taxes, if any, including sales, excise, and value added taxes, which may be levied upon Client for delivery of the Work Product and/or the Services or levied upon any payments made by Client to Unleashed under this Agreement, other than franchise, personal property, employment and income taxes of Unleashed. Unleashed reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month, or at the highest rate allowed by law, whichever is less, for amounts unpaid after the date by which the payment was to be received by Unleashed. Client's obligation to pay interest to Unleashed on such overdue amounts shall not limit in any way Unleashed’ rights hereunder. In addition, Unleashed shall be entitled to reimbursement from Client for all costs of collection, including attorneys' fees and expenses. Client shall reimburse Unleashed for its reasonable, documented, out- of-pocket expenses incurred by Unleashed in the performance of this Agreement, to the extent such expenses have been approved by Client, but such approval shall not be unreasonably withheld, conditioned or delayed. Client shall reimburse Unleashed for any single expense exceeding $500 only if Client has approved the expense before it was incurred.
5. Force Majeure.
Unleashed shall not be liable for any delay or failure to provide Services and/or the Work Product as contemplated hereunder if such delay or failure caused by events or conditions beyond its reasonable control, including but not limited to fire, flood, accident, storm, acts of war, riot, terrorism, government interference, strikes or walkouts. Unleashed shall promptly notify Client in writing of the occurrence, nature and anticipated length of continuance of any such force majeure.
During the Term, Unleashed shall maintain in full force and effect Commercial General Liability Insurance, Automobile Liability Insurance, Worker's Compensation Insurance, Employer's Liability Insurance and Professional Liability/Errors and Omissions Liability Insurance with carriers rated by A.M.Best as A- VII and above, which policies shall include at a minimum: (i) Commercial General Liability Insurance shall cover the contractual indemnification obligations and the assumption of contractual liability, subject to the exclusions, conditions and limitations of the policy. Limits of Liability shall not be less than $1,000,000 for each occurrence and $2,000,000 for annual general aggregate; (ii) Automobile limits of liability not less than $1,000,000 combined single limit for Bodily Injury and Property Damage; (iii) Employer's Liability/Maryland Stop Gap Limits of not less than $1,000,000; (iv) Workers Compensation in compliance with the State of Maryland; and (v) Professional Liability/Errors and Omissions Liability with limits not less than $1,000,000 per claim/$2,000,000 annual aggregate. Any additional insurance obligations hereunder must be set forth on the Work Order(s) for applicable Services.
7. Limitations of Liability.
Unleashed HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICES AND/OR THE WORK PRODUCT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, DATA ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT OR ANY PERFORMANCE UNDER THIS AGREEMENT. IN NO EVENT SHALL Unleashed’ LIABILITY TO CLIENT FOR ANY DIRECT OR ACTUAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES AND/OR THE WORK PRODUCT GENERALLY EXCEED THE TOTAL FEES PAID BY CLIENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ACCRUAL OF SUCH CAUSE OF ACTION.
8. Representations, Warranties and Indemnification Obligations.
Client hereby represents and warrants all Client Content and any modifications or enhancement is made to the Work Product by Client or at the request of Client do not infringe on any existing patents, copyrights, trademarks or other proprietary information of any third party. Client further represents and warrants it is duly authorized to enter into and perform this Agreement, it has all rights necessary to use the Client Content in connection with the Services and/or the Work Product including the right to make derivative works and use of such materials. If Unleashed is unable to continue work on any Work Order because of an infringement related to Client Content or modifications, enhancements or other changes made by Client to any Work Product, Client shall so notify Unleashed and Client shall pay Unleashed for Services and Work Product under such Work Order pursuant to Section 3.3. Client shall indemnify and hold harmless Unleashed, its affiliates, employees, agents and representatives from and against any third party losses, expenses, liabilities, damages and other claims, including reasonable legal fees and expenses, arising out any claim that: (i) Client Content infringes the copyright, patent, trademark, trade secret or other intellectual property right of a third party; (ii) Client has breached any provision of this Agreement or is negligent in failing to carry out its obligations hereunder, or (iii) Client has distributed, altered, duplicated or used the Services and/or the Work Product in violation of this Agreement or any law.
Unleashed Technology hereby represents and warrants to Client that: (i) all Unleashed Content does not infringe on any existing patents, copyrights, trademarks or other proprietary information of any third party; and (ii) it is duly authorized to enter into and perform this Agreement, it has all rights necessary to use the Unleashed Content and Third Party Content in connection with the Services and/or the Work Product including the right to make derivative works and use of such materials. Unleashed shall indemnify and hold harmless Client from and against any third party losses, expenses, liabilities, damages and other claims, including reasonable legal fees and expenses, arising out any claim that: (i) the Unleashed Content infringes the copyright, patent, trademark, trade secret or other intellectual property right of a third party.
Unleashed and Client hereby agree that they may provide each other with confidential information during the Term. As used herein, “Confidential Information” is any information marked "Confidential" or identified in writing to be confidential or should be reasonably understood under the circumstances to be confidential or that may be created by Unleashed for Client during the course of this Agreement. Client’s Confidential Information includes, but is not limited to, its customer lists, business plans, marketing plans and designs and other information essential to Client’s business. Unleashed’ Confidential Information hereunder includes, but is not limited to, its bids and pricing, software, know-how, tools and techniques it uses or creates, information regarding plans, Work Orders, business and marketing plans, business forms, reports, methods of operation and all other information essential to its business. Notwithstanding the foregoing language, Confidential Information does not include documents or information: (i) generally known and published through no fault of the receiving Party; (ii) obtained from a third party entitled to disclose the information or already known by the receiving Party; or (iii) developed by the receiving Party without the use or reference to the Confidential Information of the disclosing Party. Each Party hereby agrees that it will use reasonable precautions to assure that the Confidential Information is protected and not disclosed to unauthorized third parties and it will not use the other’s Confidential Information for its own purposes or the purposes of third parties without the prior written permission of the Party who owns such Confidential Information.
10.1 Work Product.
Unless otherwise specified in the applicable Work Order(s), all Work Product delivered by Unleashed hereunder shall be treated as a "work for hire” and ownership of such Work Product shall vest in Client upon Client making full and final payment for the same. Except as otherwise provided in the applicable Work Order or this Agreement, all Work Product, documentation, computer programs, source code, software products or system design specifications reduced to writing or other tangible form that are delivered by Unleashed to Client pursuant to this Agreement, shall be the property of Client upon Client making full and final payment for the Work Product, subject only to: (i) ownership rights in any duly licensed Third Party Content or Unleashed Content included in such Work Product; and (ii) A NON- EXCLUSIVE, NON-TRANSFERRABLE, SUBLICENSABLE, PERPETUAL, IRREVOCABLE, ROYALTY-FREE LICENSE DURING AND AFTER THE TERM HEREOF, WHICH LICENSE SHALL BE DEEMED TO HAVE BEEN GRANTED BY CLIENT TO Unleashed HEREUNDER, FOR Unleashed TO USE, FURTHER DEVELOP AND LICENSE EXCERPTS FROM THE WORK PRODUCT AND MAKE DERIVATIVE WORKS FROM THE SAME, TO THE EXTENT THAT SUCH EXCERPTS DO NOT CONTAIN ANY CLIENT CONTENT. CLIENT ACKOWLEDGES THAT, AS BETWEEN THE PARTIES, Unleashed SHALL OWN AND HAVE THE RIGHT TO OWN, USE TRANSFER ALL DERIVATIVE WORKS BASED ON THE WORK PRODUCT, TO THE EXTENT THEY DO NOT INCLUDE CLIENT CONTENT AND ARE CREATED BY Unleashed DURING OR AFTER THE TERM OUTSIDE THE SCOPE OF THE APPLICABLE WORK ORDER. All ideas, concepts, designs, techniques, inventions, procedures, know-how, methods, utilities, tools, discoveries or improvements, whether patentable or not, that are conceived of or reduced to practice by Unleashed or by one or more Unleashed employees or agents in the performance of Services for Client under this Agreement, whether acting alone or in conjunction with Client’s employees, or others (“Inventions”), shall be and remain the exclusive property of Unleashed. With respect to any Invention, Unleashed hereby grants to Client and to any entity that directly, or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Client, an irrevocable, a non-exclusive, non-transferable, limited, perpetual, royalty-free license to use such Inventions in the normal course of Client’s business as needed to use the applicable Work Product or Services pursuant to this Agreement.
10.2 Confidential Information.
Each Party shall retain title to its own Confidential Information and each hereby agrees not to disclose the Confidential Information of the other Party to third parties or to use it except for the purposes of this Agreement or as otherwise agreed.
10.3 Credits and Promotional Uses.
Upon Client’s written approval of the usage, Unleashed will have the right to use the Work Product, or elements thereof in Unleashed’ promotional efforts including, without limitation, portfolio use and competition, such approval not to be unreasonably withheld, conditioned or delayed.
11. Upgrades, Maintenance and Support.
For Services offered on a time and materials basis under Section 4.1, the Services do not include any maintenance or support Services and Unleashed will have no continuing obligation to upgrade the Work Product to operate with software or versions not specified in the Work Order. For Services offered as part of a Support Package or Growth Package under Section 4.2, maintenance and support Services shall be provided as stated in the applicable Work Order.
Neither Party shall for a period of one (1) year after the date of Client's last payment to Unleashed for Services provided under its most recent Work Order attached to this Agreement, employ or use the services of any present employee, consultant or independent contractor employed or retained by other Party during the Term without the prior written consent of the Party who has employed or retained the person in question. This provision can be enforced by injunctive relief.
All notices required hereunder shall be in writing and shall be delivered by personal delivery, electronic mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission or confirmation of successful facsimile or e-mail transmission. Such notices shall be addressed to the Parties as follows or such other addresses as the Parties may subsequently specify: To Client: at the address and to the contact person as noted on the applicable Work Order; and to Unleashed: Unleashed, LLC, 8825 Stanford Blvd, Suite 105, Columbia, MD 21045, Attn: Muhammad Hutasuhut, CEO, [email protected], with a copy to Offit Kurman, PA, 8171 Maple Lawn Boulevard, Suite 200, Maple Lawn, Maryland 20759, Attn: Jonathan R. Wachs, [email protected].
The Parties are independent contractors hereunder and nothing hereunder shall create an employer‑employee relationship, a partnership, or a joint venture between them. If any provision hereof or any application thereof is invalid or unenforceable for any reason, the remainder hereof and any application of such provision shall not be affected thereby and this Agreement shall remain in full force and effect. No alteration of or addition to this Agreement or any Work Order will be binding unless in writing and signed by both Parties. This Agreement may not be assigned by Client except with the express written consent of Unleashed. If either Party retains an attorney to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its costs, including reasonable attorneys’ fees. No waiver of any breach of any of the covenants, terms or conditions contained in this Agreement shall be construed to be a waiver of any other breach unless expressly agreed in writing. This Agreement has been entered into in the State of Maryland and shall be construed, interrupted and enforced according to the laws of the State of Maryland or applicable federal laws. Venue for any suit arising hereunder shall lie in Howard County, Maryland. This Agreement is the joint work product of the Parties and their advisors such that neither Party shall be construed as the author hereof. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof. Electronic signatures delivered hereunder shall be enforceable to the maximum extent permitted by law. Any prior written or oral agreement of the Parties regarding the Services is hereby superseded by this Agreement. Each Party hereby waives its right to a jury trial in connection with any dispute arising hereunder.
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