Lean Human Capital Master Services Agreement

This Master Services Agreement (the “Agreement”), governs any Supplement signed by the customer identified in that Supplement (“Customer”), and Lean Human Capital by HealthcareSource, a service of HealthcareSource HR, Inc. (“Lean Human Capital”). If any conflict exists between either of these documents, this Agreement will govern, followed by the Supplement.

Customer, on the terms and conditions set forth in this Agreement, desires that Lean Human Capital provide certain services for Customer’s benefit. Lean Human Capital, on the terms and conditions set forth in this Agreement, desires to provide such services to Customer.

Lean Human Capital may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of http://www.healthcaresource.com where the prior version of this Agreement was posted, or by communicating these changes through any written contact method we have established with you. Customer’s entering into this Agreement and its continued use of the Services constitutes Customer’s acceptance of any such changes or amendments. Customer should regularly check this Agreement, as it may be amended from time to time.

NOW, THEREFORE, in consideration of the mutual promises and covenants herein set forth, and intending to be legally bound, Lean Human Capital and Customer agree as set forth below.

DEFINITIONS. The following terms have the meanings ascribed to them below for the purposes of this Agreement:

“Assessment Survey” means the HMARTSM - Hiring Manager Assessment of Recruitment Team, New Hire Candidate Experience Assessment, Non-Hired Candidate Applicant Assessment or other survey questionnaire soliciting information regarding Customer’s recruiting operations.

“Commencement Date” means the effective date of the applicable Supplement.

“Confidential Information” shall have the meaning set forth in Section 6 of this Agreement.

“Contact” means a representative of Customer designated by Customer to act as a primary contact with Lean Human Capital.

“Core Recruiting Benchmark Cloud Solution” means the Lean Human Capital provided online web module(s) used for data entry, benchmark access, downloading raw data or any other features or uses Lean Human Capital may enable from time to time.

“Customer Data” means data pertaining to financial, operational, marketing, human resources and billing information provided to Lean Human Capital by Customer in the performance of this Agreement.

“Data Collection Tool” means the Core Recruiting Benchmark Cloud Solution, a data collection template, performance scorecard or other device for assembling objective data regarding Customer’s recruiting operations.

“Expenses” means the out-of-pocket expenses incurred by Lean Human Capital, its employees or contractors (including travel costs) in connection with the services provided hereunder (if any).

“Lean Human Capital Tools” means an Assessment Survey or Data Collection Tool, as the context requires.

“Services” has the meaning ascribed to it by Section 1 of this Agreement.

“Supplement” means (i) a supplement for the order of training services or other products or services agreed to by Customer and Lean Human Capital in a signed written document, (ii) an order for training services or other products or services placed by Customer or a Customer employee and accepted by Lean Human Capital through a web site operated by or for Lean Human Capital, or (iii) a paper or electronic purchase order or other similar record submitted by Customer and accepted by Lean Human Capital during the Term.

“Term” has the meaning ascribed to it by Section 3.1 of this Agreement.

1. SCOPE OF AGREEMENT.

Subject to the terms and conditions of this Agreement, Lean Human Capital shall supply to Customer those training services or other products and services, including access to the Core Recruiting Benchmark Cloud Solution, which are specified in the Supplement(s) the parties execute from time to time during the Term (the “Services”). Each Supplement will constitute a separate contract between the parties, each of which shall be governed by the terms and conditions set forth in this Agreement. This Agreement and each Supplement, to the greatest extent reasonably practicable, shall be construed so as to be consistent with each other, provided, that in the event this Agreement and any Supplement cannot reasonably be construed as consistent with each other, this Agreement shall control with respect to its subject matter.

2. CUSTOMER RESPONSIBILITIES.

2.1. Contact. Customer hereby appoints the individuals identified in the applicable Supplement as the “Contact” for the activities designated by such Supplement. Customer may replace Customer Contact with another, similarly qualified individual by written notice to Lean Human Capital. Customer represents that each Customer Contact has authority to act for Customer with respect to all matters relating to designated activities.

2.2. Other Responsibilities. Customer will perform the responsibilities assigned to it by each Supplement, in each case in accordance with the schedule and other terms and conditions established by the applicable Supplement.

3. TERM; TERMINATION.

3.1. Term. As between Customer and Lean Human Capital, this Agreement shall become effective on the date the first Supplement is fully executed by Customer and Lean Human Capital and shall continue until the expiration or termination of the last-to-expire Supplement. The term of each Supplement shall commence on the applicable Commencement Date and shall continue for the period specified therein (the “Term”).

3.2. Termination for Cause. Either party may terminate any Supplement by written notice if the other party commits a material breach of any term applicable to such Supplement and fails to cure such breach within ten (10) calendar days (in cases of nonpayment) or thirty (30) calendar days (in the case of any other breach) after receipt of written notice of such breach.

3.3. Effect of Termination. Sections 6, 7, 8 and 9 shall survive termination or expiration of this Agreement and remain in full force and effect. Termination of this Agreement shall not relieve either party from any of such party’s payment and other obligations incurred prior to such termination.

4. FEES AND EXPENSES; PAYMENT.

4.1. Fees and Expenses. In consideration for the services provided under each Supplement, Customer shall pay Lean Human Capital the fees specified by the applicable Supplement in accordance with the payment terms set forth therein, or in absence of such terms, within thirty (30) calendar days of Lean Human Capital’s invoice therefor. In addition, Customer shall reimburse Lean Human Capital for reasonable Expenses (if applicable) within thirty (30) calendar days of the date of Lean Human Capital’s invoice therefor. Notwithstanding the foregoing, without prior written approval, Customer shall have no liability for any Expenses that are not travel and/or lodging related in excess of $1,000. All payments will be made in U.S. Dollars.

4.2. Taxes. All amounts described herein or in any Supplement are exclusive of any applicable sales taxes, use taxes and similar taxes and levies, excluding without limitation taxes based on Lean Human Capital’s net income, all of which shall be the responsibility of Customer.

4.3. Late Payments. Any late payment by Customer under this section shall be subject to Lean Human Capital’s costs of collection (including reasonable legal fees and costs) and shall bear interest at the rate of 1½% per month or part thereof or at the maximum rate permitted by law.

5. INTELLECTUAL PROPERTY.

5.1. Materials. Lean Human Capital, as between Lean Human Capital and Customer, is and shall be the exclusive owner of all reports, presentation materials, instructional materials, workbooks, forms, templates and other materials Lean Human Capital provides to Customer in the course of performing Services (the “Materials”), including all modifications, enhancements and customizations to and compilations and derivative works of any Materials prepared by or for either party, and all patents, copyrights, trademarks, trade secrets and other intellectual property rights related thereto or embodied therein, whether created or developed prior to, during or after the Term. Except as expressly authorized below (i) all Materials will be deemed the Confidential Information of Lean Human Capital, and (ii) Customer will not reproduce, display, perform, modify or create derivative works from any Materials.

5.2. Materials Grant. Lean Human Capital hereby grants to Customer a non-exclusive, non-transferable, perpetual license to use the Materials solely for Customer’s internal business purposes, including any customizations.

5.3. Cloud Solution Grant. Lean Human Capital hereby grants to Customer for the duration of the Term, a non-exclusive, non-transferable, limited license to access and use the Core Recruiting Benchmark Cloud Solution for Customer’s internal purposes only. Customer will lose access to the Core Recruiting Benchmark Cloud Solution upon the expiration or termination of this Agreement or any Supplement Term.

5.4. Limitations and Restrictions. Without limiting the foregoing, Customer shall not, and shall not permit any of its employees or independent contractors to (i) reverse engineer, disassemble, decompile or translate the Materials or the Services (except as permitted by law, if at all); (ii) change, modify or otherwise alter the Materials or Services (except as permitted by law, if at all), (iii) assign, transfer, pledge, rent, share or sublicense any of the Materials or Services without Lean Human Capital’s prior written consent; (iv) grant any third party access to or use of the Materials or Services on a service bureau, timesharing or application service provider basis or otherwise, or (v) use the Assessment Surveys, or any derivative thereof, for any purpose other than to interpret the results of performing the Assessment Survey. Customer on all copies of the Materials prepared pursuant to this license, will reproduce all copyright, trademark and patent notices and other proprietary rights notices placed or embedded on or in any part of the Materials.

5.5. Recruiting Data. Subject to the terms and conditions of this Agreement, and Lean Human Capital’s compliance therewith, Customer hereby grants to Lean Human Capital a limited, nonexclusive, nontransferable (except in connection with a sale of substantially all of Lean Human Capital’s outstanding ownership or substantially all of Lean Human Capital’s assets to which this Agreement relates) license to use the results derived from performing the Assessment Surveys, recruiting metrics and other recruiting-related information Lean Human Capital gathers using the Lean Human Capital Tools (collectively, “Recruiting Data”) (a) to perform its obligations under this Supplement, and (b) as part of the Lean Human Capital’s database Lean Human Capital employs to benchmark the recruiting performance of its client’s (including Customer as contemplated by this Supplement). Lean Human Capital will not disclose the Recruiting Data to any third party other than in an aggregated and anonymized form that precludes identification of the Customer Organization and its personnel as the source of the information. For clarity, the Customer Data that is aggregated and anonymized under this Supplement will not be de-aggregated or de-anonymized by Lean Human Capital or any third party without the prior written consent of Customer.

6. CONFIDENTIALITY.

6.1. “Confidential Information,” for purposes of this Agreement, shall mean all information and know-how (whether or not patentable and whether or not copyrightable) owned, possessed or used by one party hereto (“Owner”) that Owner discloses or has disclosed to the other party (“Recipient”) or to which Recipient gains or has gained access by virtue of the parties’ relationship, in each case prior to or after the execution of this Agreement, including, without limitation, any invention, product, formula, method, technique, algorithm, project, development, plan, vendor or customer information, equipment, trade secret, process, research, reports, laboratory, financial or technical data, marketing or operational information, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost and personnel data and human resources information, provided, that Confidential Information shall not include information which (1) is or becomes available to the public other than as a result of disclosure by Recipient or its employees in violation of this Agreement; (2) was known to Recipient prior to Recipient’s receiving the same pursuant to this Agreement and not otherwise restricted by contract or law; or (3) becomes available to Recipient on a non-confidential basis from a third person or source not restricted by contract or law regarding such information. For avoidance of doubt, Lean Human Capital Confidential Information shall include all algorithms, data and other content (excluding Customer Data) delivered to Customer in the course of providing services pursuant to this Agreement.

6.2. Protection. Recipient agrees to safeguard Owner’s Confidential Information and to prevent the unauthorized, negligent or inadvertent use, copying or disclosure thereof in a manner not less than that employed to protect each such party’s own proprietary information and always with at least a reasonable degree of care.

6.3. Non Use; Nondisclosure. Recipient shall use Owner’s Confidential Information only in the course of performing this Agreement and for no other purpose. Recipient shall have the right to disclose Owner’s Confidential Information only (i) to those of its employees, representatives, agents and contractors who have a need to know the same and who have executed a confidentiality agreement in favor of Recipient or otherwise owe Recipient a duty of confidentiality, and (ii) as required by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient as soon as reasonably practicable shall provide notice thereof to Owner and, at Owner’s reasonable request and expense, assist Owner in obtaining a protective order or otherwise prevent public disclosure of such information. Recipient as soon as reasonably practicable shall notify Owner of any unauthorized use or disclosure of Owner’s Confidential Information by Recipient or any Recipient employees, representatives, agents or contractors. Following the expiration or termination of Recipient’s rights to use Owner’s Confidential Information under this Agreement (including the Supplements), Recipient at Owner’s request will return to Owner all such Confidential Information delivered or disclosed, together with all copies thereof at any time made by such party.

6.4. General Know-How. Notwithstanding anything to the contrary herein, Lean Human Capital and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment hereunder, so long as Lean Human Capital or its personnel acquire and apply such information without disclosure of any Confidential Information of Customer.

7. MUTUAL HIRING PROTECTION.

In the event that any party during the term of a Supplement or within six (6) months thereafter retains as a consultant or hires directly as an employee any Protected Employee (as defined below) of the other, the hiring party will (i) provide the other party at least four (4) weeks notice prior to the Protected Employee’s start date at the hiring party (“Notice Period”) and (ii) pay an amount equal to the salary, benefits, and payroll taxes incurred by the other party during the Notice Period as a fee for the additional benefit obtained by the hiring party. “Protected Employee,” for the purposes of this Section 7, means an employee of the other party with whom the employing party first comes into contact by virtue of the applicable Supplement or the parties’ negotiation of the applicable Supplement.

8. WARRANTY; LIABILITY LIMITATIONS.

8.1. Lean Human Capital’s Warranty of Ownership and Performance. Lean Human Capital represents and warrants that Lean Human Capital, subject to Customer’s performance of the obligations imposed by Section 2 of this Agreement, shall perform its services pursuant to this Agreement in a professional and workmanlike manner. LEAN HUMAN CAPITAL DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES OR SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF CUSTOMER’S USE OF THE SERVICES RESULTS IN THE NEED FOR REPLACING DATA, SOFTWARE OR HARDWARE, LEAN HUMAN CAPITAL WILL NOT BE RESPONSIBLE FOR ANY COSTS IN CONNECTION WITH SUCH REPLACEMENTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.1, LEAN HUMAN CAPITAL DOES NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, AND DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY OF NON-INFRINGEMENT OR ANY WARRANTY EXPRESS OR IMPLIED THAT THE SERVICES WILL YIELD ANY PARTICULAR RESULTS OR BENEFITS FOR CUSTOMER. ALTHOUGH THE SERVICES WILL REFLECT BEST JUDGMENT, KNOWLEDGE AND EXPERTISE OF LEAN HUMAN CAPITAL, LEAN HUMAN CAPITAL DISCLAIMS ANY REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE AS TO THE OUTCOME OF ANY ACTION BY LEAN HUMAN CAPITAL OR CUSTOMER BASED ON THE RESULTS OF THE SERVICES OR OTHERWISE.

8.2. Limitation of Liability. IN NO EVENT SHALL LEAN HUMAN CAPITAL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT LEAN HUMAN CAPITAL IS FOUND LIABLE FOR ANY REASON UNDER THIS AGREEMENT, IN NO CASE SHALL LEAN HUMAN CAPITAL’S TOTAL LIABILITY FOR ACTUAL DIRECT DAMAGES IN THE AGGREGATE EXCEED FEES PAID BY CUSTOMER PURSUANT TO THE APPLICABLE SUPPLEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THIS SECTION STATES CUSTOMER’S SOLE REMEDY AND LEAN HUMAN CAPITAL’S EXCLUSIVE LIABILITY FOR ALL DAMAGES WHATSOEVER, IN CONTRACT OR TORT OR OTHERWISE.

9. MISCELLANEOUS.

9.1. No Other Beneficiaries. This Agreement is being made and entered into solely for the benefit of the parties hereto, and no party intends hereby to create any rights in favor of any other person as a third party beneficiary of this Agreement or otherwise.

9.2. Assignment. This Agreement, the Supplements, and the licenses granted herein, which are personal to Customer, may not be sold, assigned, sub-licensed or otherwise transferred without the prior written consent of Lean Human Capital, such consent not unreasonably to be withheld. Any attempt to transfer without such consent shall be void. If Lean Human Capital consents to the assignment, sub-license or transfer, this Agreement and the applicable Supplements shall be binding on the successors and assigns of the parties hereto.

9.3. Force Majeure. Neither party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such party or its contractors, agents or suppliers, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances (including without limitation a strike or other labor disturbance arising in respect of the work force of the party taking advantage of the provisions of this Section 9.3), Acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.

9.4. Relationship of Parties. In making and performing this Agreement, the parties act and shall act at all times as independent contractors, and nothing contained herein shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.

9.5. Notices. All notices, demands and other communications hereunder shall be in writing and shall be hand-delivered, overnight couriered or mailed by certified mail, return receipt requested to the parties executing this Agreement at the addresses herein and modified periodically in writing. Notice shall be deemed given upon receipt.

9.6. Governing Law and Jurisdiction. Except with respect to that body of law relating to choice of law, this Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts. The parties agree to submit to jurisdiction and venue in the state and federal courts sitting in the District of Massachusetts. Any award made by a court in conjunction with litigation between the parties regarding this Agreement shall include an award of all reasonable attorneys’ fees and legal costs incurred by the party in whose favor the final decision is rendered.

9.7. Complete Agreement. This Agreement, including the Attachments and Supplements hereto, constitutes the complete Agreement between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof. This Agreement cannot be modified or changed in whole or in part in any manner other than by an Agreement in writing duly signed by both parties hereto.

9.8. Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application thereof to any person or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent of the law.

9.9. Waiver and Amendment. The waiver by any party hereto of a breach of any provision of this Agreement or any Supplement shall not operate or be construed as a waiver of any subsequent breach. A Supplement may be amended, modified, or superseded and the terms and conditions therein may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance.

9.10. Specific Enforcement. In the event of a breach or threatened breach of the covenants set forth in Section 6 or 7 of this Agreement, the non-breaching party will be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which the non-breaching party may be entitled, without necessity of posting bond or other security. Each party acknowledges that its breach of any of the covenants set forth in such sections would result in immediate and irreparable injury to the other party.

9.11. Participant Lists. Lean Human Capital may include Customer in its lists of entities participating in its benchmarking, RECRUITx and RACR programs. Lean Human Capital may also include Customer in its general customer and reference lists. Lean Human Capital shall make no other use of Customer’s name without Customer’s prior written consent.

9.12. Interpretation. In this Agreement and each Supplement, (i) section headings are for convenience only and shall not affect the construction or interpretation of this Agreement, (ii) the use of plural shall include the singular and the use of the singular shall include the plural, in each case where the context requires, and (iii) references to masculine, feminine or neuter genders shall include each and every gender as the context requires.

9.13. Counterparts; Electronic Transactions. Any Supplement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. A party’s acceptance or approval of a Supplement by electronic mail or other electronic means shall be binding on such party as if such party had executed the Supplement in writing.

Version 1.0
August 26, 2016