MASTER SERVICES AGREEMENT 

This MASTER SERVICES AGREEMENT (this “Agreement“) is entered into on this application day,  (the “Effective Date“), by and between KMK Consulting, Inc. , having its principal place of business at  Headquarters Plaza, North Tower, 7th Floor, Morristown, NJ  07960 (“KMK”) and Applicant, with offices at address listed on application (“VENDOR“).  KMK and VENDOR are each referred to herein as a “Party” and collectively as the “Parties.” 

RECITALS: 

WHEREAS, KMK would like VENDOR to provide certain services and VENDOR would like to provide such services in accordance with the terms and conditions of this Agreement. 

NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein, the Parties hereto agree as follows: 

1. SERVICES 

1. Purpose; Scope of Services.  The purpose of this Agreement is to establish an on-going services arrangement betweenKMK and VENDOR for the provision of certain services and Deliverables (defined below) as further described in a separate work order (the “Services“).  Each specific project for which KMK wishes to engage VENDOR shall be covered by a separate work order in a form provided to VENDOR by KMK (each, a “Work Order” or “Work Order”). Each fully executed Work Order shall be annexed to this Agreement as a specially numbered Work Order (e.g., Work Order No. 1, Work Order No. 2, etc.) and shall become part of this Agreement.  Each such Work Order shall contain a description of the Services, the anticipated period of performance, a payment schedule and any other items agreed to by the Parties.  As used herein, “Deliverables“ shall mean any Content (meaning the visible and audible content of a program, software or Web site), Materials, Intellectual Property, advice, or other items or materials which VENDOR has or shall provide in connection with this Agreement, as set forth in any applicable Work Order.  Deliverables shall also include any and all discoveries, inventions, know how, technology, methodologies and other work product, whether or not patentable, and whether or not reduced to practice which are disclosed in the Content or Materials.  
2.  Performance by VENDOR.  VENDOR shall provide necessary individuals to perform the Services (collectively, “Personnel“), facilities, equipment and supplies, as required for fulfillment of its obligations under this Agreement.  Furthermore, VENDOR shall perform such Services in a professional manner with care, skill and diligence, and shall use commercially reasonable efforts to successfully complete such Services within the time frame set forth in each Work Order.  VENDOR will promptly notify KMK, by telephone and subsequently in written form, of any events that occur that materially interrupt or affect the performance of the Services or the completion of the Services in accordance with the time frame set forth in the Work Order.    If, at any time during the course of the Services, KMK determines that any performance of the Services by any Personnel is unsatisfactory, KMK may require VENDOR to immediately remove such Personnel and replace such individual, at no cost or penalty to KMK for delays or inefficiencies such replacement may cause. 
3. Transparency.VENDOR acknowledges and understands that KMK’s customers may be required to publically report payments made to healthcare professionals by or on behalf of KMK pursuant to applicable federal and state transparency and aggregate spend laws or regulations. All payments made by VENDOR to Healthcare professionals (defined below) pursuant to a Work Order under this Agreement shall be fair market value. If the Services involve activities that are not double-blinded activities and involve payment or any transfer of value of any kind to a Healthcare professional, VENDOR shall provide information regarding all payments or any transfer of value VENDOR makes to Healthcare professionals on behalf of KMK in accordance with the requirements set forth in the applicable Work Order.  VENDOR certifies that the information with respect to payments made to Healthcare Professionals that it provides to KMK will be complete, timely, and true and correct to the best of its knowledge. As used herein, “Healthcare professional” shall mean any person who exercises skill and judgment or provides a service related to the treatment or care of patients; this includes, but is not limited to, physicians, physician assistants, nurse practitioners, nurses, pharmacists, hospital consultants, social workers and practice administrators. 

1. Fair Market Value. All fees paid to market research participants under each Work Order shall be fair market value, as established by published metrics and consistent with applicable industry and professional standards for the Services rendered and no lodging, meals or other expenses will be paid to market research participants who are Healthcare Professionals. 

1. Security & Privacy–RespondentConfidential Information and Personally Identifiable Information. VENDOR acknowledges the importance of keeping information obtained from its performance of the Services private and confidential and the work product secure.  Both Parties shall at all times hold in trust, keep confidential and not disclose to any third party or make any unauthorized use of confidential information (“CI”) or Personally Identifiable Information (“PII”) of any participant (“Respondent”) involved in the Services. Both Parties will use commercially reasonable efforts to keep the Respondent CI and PII secure from any public or third party access. Both Parties will comply, with all applicable state, federal and international statues and regulations governing privacy, data security and the use of Respondent CI and PII.  VENDOR agrees that where required by federal, state or local law, regulation, rule or ordinances or industry best practice, it will obtain appropriate prior written and signed consent from all Respondents involved in the Services.  
2. Goodwill. Each Party shall exercise its best efforts to safeguard the established good will of the other Party’s name and Image. “Image“, as used herein, refers primarily to the quality of a Party’s products, customer service, promotion, and creation and introduction of new products.  

1. Restrictive Covenants.  Each Party covenants and agrees that during the Term of this Agreement and for eighteen (18) month thereafter (such time-period being referred to herein as the “Restricted Period“), it shall not, directly or indirectly, either for himself or for any other person or entity to  (i) solicit or attempt to induce any person or entity who is or has been a client, customer, competitor, supplier, licensor, licensee or other business relation of  the other Party at any time during the Restricted Period, to cease doing business with the other Party;  (ii) take any actions which are calculated to persuade any person or entity who is a director, officer employee, agent, or consultant of the other Partyor any of its Affiliates (as defined in Section 5.A to terminate their association with the other Party or such Affiliates; or (iii) solicit or hire any person or entity who is or was a director, officer, employee or agent of the other Party or any of its Affiliates to perform services for any entity other than the other Party and its Affiliates without consent and written agreement of the other Party.  

1. VENDOR’S REPRESENTATIONS AND WARRANTIES 

                VENDOR represents and warrants to KMK that (i) the execution of this Agreement and full and timely performance of the covenants, duties and obligations described herein have been, and shall be, duly authorized by all necessary corporate action in accordance with all applicable laws; (ii) market for research related services, it shall provide the Services in compliance in all material respects with all applicable foreign, federal, state and local laws, rules and regulations, including, but not limited to, where applicable, ISO 20252:2012, the Code of Standards and Ethics for Survey Research of the Council of American Survey Research Organizations (CASRO); the Pharmaceutical Market Research Group (PMRG) Code of Conduct; the European Pharmaceutical Market Research Association (EphMRA) Code of Conduct and Guidelines on Adverse Events and FMV guidelines for Honoraria; and the International Code on Market and Social Research of the European Society for Opinion and Marketing Research (ESOMAR); (iii) this Agreement is a valid, legal and binding obligation upon VENDOR, enforceable in accordance with its terms, except as enforceability may be limited by applicable insolvency and other laws affecting creditors’ rights generally or by the availability of equitable remedies; (iv) it is not now a party to any agreement which would prevent it from fulfilling its obligations under this Agreement and it will not knowingly enter into any agreement with any other party that would in any way prevent it from performing its obligations under this Agreement; (v) its execution of this Agreement and the performance of its obligations hereunder will not, conflict with, result in the breach of any provisions of or the termination of, or constitute default under, any agreement, including without limitation, non-competition agreements,  to which the VENDOR is subject; (vi) neither it nor any individual employed or engaged by VENDOR have ever been and are not currently (a) under investigation for debarment or debarred pursuant to the Generic Drug Enforcement Act of 1992, 21 U.S.C. § 335(a), as amended, or any similar state law or regulation; (b) excluded by the Office of Inspector General pursuant to 42 U.S.C. § 1320a-7, et seq. or any state agency from participation in any federal or state health care program; or (c) otherwise disqualified or restricted by the FDA pursuant to 21 C.F.R. 312.70 or any other regulatory authority, nor will VENDOR knowingly utilize any debarred, excluded or disqualified Personnel to perform Services hereunder; and (vii) it will notify KMK immediately in the event any investigation or proceeding for debarment, exclusion or disqualification is initiated against VENDOR or any Personnel. 

1. COMPENSATION 

1. Service Fee.  As consideration for VENDOR’s performance of the Services, KMK shall pay VENDOR the amount set forth in the applicable Work Order (the “Service Fee“).  KMK shall also pay VENDOR for reasonable and necessary travel and other expenses approved in advance by KMK that are incurred by VENDOR in the performance of the Services provided that the sum of such expenses together with the Service Fee does not exceed the Cap Amount set forth in the Work Order.  No other form of compensation shall be paid by KMK to VENDOR except as otherwise approved in writing by KMK.   

1. Payment of Service Fee.  Except as otherwise set forth in a Work Order, prior to payment by KMK of all or any portion of the Service Fee, VENDOR must submit an invoice to KMK for Services performed under this Agreement which shall reference the applicable purchase order number (each, an “Invoice“) by the end of each month in which it is performing Services.  Each Invoice shall be addressed to the address set forth in the Work Order.  Additionally, each Invoice shall be accompanied by receipts or other such supporting data as may be reasonably required by KMK.  Approved Invoices shall be paid by KMK by the 10th day of the following month for any Services performed specifically for KMK and by the 10th day of the month s after KMK receives payment from the client for whom VENDOR is performing Services on behalf of KMK.  In the event there is a disputed charge, KMK will withhold payment for the disputed portion of the Invoice pending resolution of the dispute as described in Section 3.D below.   

1. VENDOR’s Responsibility.  All terms and payments of compensation, benefits, and any other condition of engagement for any Personnel shall be solely a matter between VENDOR and such Personnel.  VENDOR shall indemnify, defend, and hold harmless KMK from any third party claim that arises out of VENDOR’s failure to comply with this Section 3.C. 

1. Invoice Disputes.  If KMK identifies items in an Invoice which are disputed (“Disputed Charges“), KMK will notify VENDOR in writing within thirty (30) days after receiving the Invoice (“Disputed Charges Notice“).  VENDOR must respond to each Disputed Charges Notice within ten (10) working days following receipt of such Disputed Charges Notice.  This written communication between the Parties concerning Disputed Charges will continue until the Disputed Charges are no longer disputed (i.e., upon KMK’s written notice that it will pay the Disputed Charges in full; upon payment of the Disputed Charges in full; upon written agreement of the Parties that KMK will pay and VENDOR will accept a lesser amount in payment of the Disputed Charges than that originally invoiced; or upon VENDOR’s written notice to KMK that the Disputed Charges have been deleted). 

4. TERM & TERMINATION 

1. Term.   The term of this Agreement shall commence as of the Effective Date and, if not earlier terminated in accordance with this Agreement, shall remain in full force and effect until: (i) five (5) years after the Effective Date; or (ii) upon termination or expiration without renewal of the last Work Order still in effect at the end of five (5) years after the Effective Date, whichever is longer (the “Term“).  Notwithstanding the foregoing, the Parties may mutually agree in writing to extend the Term of this Agreement.   

1. Termination Date.  Unless earlier terminated as set forth herein or otherwise agreed to by the Parties in writing, the termination date of this Agreement shall be either the last day of the Term as set forth in Section 4.A, or the date on which this Agreement (and all Work Orders) is earlier terminated in accordance with Section 4.C below (the “Termination Date“).  The termination date of a Work Order shall be either the last day of the term as set forth in a Work Order, or the date on which such Work Order is earlier terminated in accordance with Section 4.C below (the “Work Order Termination Date“). 

1. Termination.   

1. By VENDOR.  In addition to any other remedies provided herein or available at law or in equity, VENDOR may terminate this Agreement and/or any Work Order (i) for convenience by giving VENDOR thirty (30) days prior written notice of termination; provided that prior to the effective date of such termination VENDOR completes any work it may have agreed to under any outstanding Work Orders and ensures orderly transition of any ongoing work; and (ii) in the event of a material breach by KMK, which breach is not cured within thirty (30) days following KMK’s receipt of written notice of breach from VENDOR. 

1. ii.By KMK. In addition to any other remedies provided herein or available at law or in equity, KMK may terminate this Agreement and/or any Work Order: (a) in the event of material breach by VENDOR, which breach is not cured within thirty (30) days following VENDOR’s receipt of written notice of breach from KMK; (b) immediately in the event KMK becomes aware of a threatened or actual debarment, exclusion or disqualification as further described in Section 2.B.ii above; and (c) for convenience by giving VENDOR thirty (30) days prior written notice of termination. 

1. Effect of Termination.  In the event of early termination of this Agreement and/or any Work Order, KMK’s liability for payment to VENDOR under this Agreement shall be limited to payment for satisfactory completed Services or prorated portions thereof received by KMK and other pre-approved, non-cancelable expenses or obligations incurred by VENDOR prior to the Termination Date or Work Order Termination Date, as applicable.  Except as set forth above, within thirty (30) days after the Termination Date or the Work Order Termination Date, as applicable, VENDOR shall return to KMK any payment it received from KMK for Services that were not rendered as of the Termination Date or Work Order Termination Date.  Notwithstanding any provision to the contrary, if the basis for termination of this Agreement is due to the negligence of or material breach by VENDOR or any Personnel, the amount due VENDOR under this Section 4.C.iii shall be subject to good faith negotiation taking into account the cause and effect of such negligence or breach on KMK.  

5. CONFIDENTIAL INFORMATION

1. Confidential Information.  Each Party acknowledges and agrees that any data, documents, materials or information of any type whatsoever, in whatever form or medium, whether or not marked as “confidential” and/or “proprietary,” and which could reasonably be expected to be valuable to the disclosing Party or its Affiliates (the “Disclosing Party”) or its Affiliates (as defined herein), including but not limited to, (i) any information concerning or relating to the property, products, research, technology, business and affairs of the Disclosing Party , (ii) any confidential information belonging to a customer or client of the Disclosing Party (“Customer Confidential Information“); (iii) all methods, procedures, processes, systems, and algorithms used by the Disclosing Party which are not known to the public, or (iv) user names, login names, pass codes, login passwords, access codes and authentication codes, and (v) all non-public data, ideas, inventions, information, improvements, files, accounting records, software programs and related documentation, computer codes, unique selling and servicing methods, procedures, processes, systems, algorithms processes, business techniques, training service and business manuals, vendor and product information, customer and prospective customer lists and information, supplier lists and information, all other business related information, whether reduced to writing, maintained on any form of electronic media, or maintained in the mind or memory of the Disclosing Party or its agents and employees, and all copies and any tangible embodiments thereof in whatever form or medium, that is learned, created by, disclosed to or becomes known by the receiving Party (the “Receiving Party”) pursuant to this Agreement constitutes the confidential information of the Disclosing Party  (collectively, “Confidential Information“).  Except as otherwise expressly provided herein, the Receiving Party shall (i) hold such Confidential Information in strict confidence; (ii) not disclose such Confidential Information to any third party, except to agents and subcontractors who “need to know;” provided, however, that such agents and contractors agree in writing to abide by the confidentiality provisions set forth herein; (iii) use such Confidential Information only as necessary to perform the Services and not for any other purpose; (iv) upon termination or expiration of this Agreement, destroy or return to the Disclosing Party, at the Disclosing Party’s option, all tangible Confidential Information in its possession and in the possession of any agents and subcontractors’; and (v) protect Confidential Information received from disclosure with at least that degree of care used by the Receiving Party in dealing with its own confidential information and shall take reasonable steps to minimize the risk of an unauthorized disclosure of Confidential Information.  As used in this Agreement, “Affiliate(s)” shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with the Disclosing Party, and for this purpose, “control,” “controlling” and “controlled by” shall mean the ownership and control of more than fifty percent (50%) of the outstanding voting securities or interest in capital or profits of any person or entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement. Affiliates of KMK include, without limitation, KMK Data Services Inc., KMK Computech, Ltd. and KMK Consulting, Inc. (Dalian). 

1. Exceptions to Confidential Information.  Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or hereafter becomes generally available to the public other than by reason of any breach hereof; (ii) was already known to the Receiving Party prior to the date of disclosure; (iii) is disclosed to the Receiving Party by a third party who has the right to disclose such information without any obligations of confidentiality; (iv) is developed by or on behalf of the Receiving Party independently, without reliance on Confidential Information received hereunder, as demonstrated by written records; or (v) is otherwise required to be disclosed by the Receiving Party in order to comply with applicable legal requirements of a public authority, law, rule of court or regulation, provided that (a) the Receiving Party promptly notifies the Disclosing Party of the obligation to disclose in order to allow the Disclosing Party to object or seek a protective order; (b) the Receiving Party only discloses the minimum amount of Confidential Information that is necessary to comply with the required disclosure; and (c) such information remains Confidential Information for all other purposes. 

1. Restricted Period.  These restrictions upon disclosure and use of Confidential Information shall continue during the Term and shall extend beyond the Term for a period of three (3) years, provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such restrictions on disclosure and/or use shall survive the Termination Date for as long as such Confidential Information remains a trade secret but, in no event, shall such restrictions on disclosure and/or use cease prior to the expiration of ten (10) years following the Termination Date. 

1. WORK PRODUCT 

1. Inventions. Unless otherwise expressly agreed to in a Work Order,VENDOR agrees that any inventions, works of authorship, other Intellectual Property (defined below) and/or scientific information or documentation that are conceived, developed, originated, fixed or reduced to practice by VENDOR or any Personnel, including any subcontractor or third party providers hired by VENDOR, resulting from VENDOR’s engagement by KMK, including without limitation, any and all modifications or improvements made thereto or derivative works made therefrom, as well as feedback,  suggestions and ideas from VENDOR’s use of KMK’s Intellectual Property, including software (collectively, “Inventions“), shall be the sole and complete property of KMK or any of its Affiliates, and shall be treated as Confidential Information.  VENDOR shall fully disclose to KMK all Inventions conceived or reduced to practice by VENDOR.  VENDOR hereby assigns and conveys to KMK or any of its Affiliates, at no cost to KMK, VENDOR’s entire right, title and interest to any and all resulting Inventions.  VENDOR agrees to execute all applications or registrations for patents and copyrights, and any other instruments deemed necessary or helpful for KMK or its Affiliates to secure and enforce its rights hereunder.  VENDOR shall also obtain the agreement of each subcontractor or third party provider to the foregoing.  VENDOR hereby irrevocably assigns to KMK any and all right, title and interest in and to (i) any and all modifications or improvements to, or derivative works performed on, KMK Materials or KMK Intellectual Property, including without limitation, patent rights, copyrights and trademark rights and trade secret rights, and (ii) any and all Intellectual Property created or developed by VENDOR for KMK in connection with this Agreement, including without limitation, patent rights, copyrights and trademark rights and trade secret rights. As used herein “Intellectual Property” shall mean (i) patents, (ii) trade secrets or confidential business information (including without limitation, formulas, processes, methodologies and algorithms), (iii) copyrights, (iv) trademarks (including without limitation, service marks, trade dress, logos, brand features), company names, trade names, Internet domain names, together with all goodwill associated with any of the foregoing, and (v) any and all registrations, translations, adaptations, derivations, combinations or renewals of all of the foregoing, and similar rights of any type under the laws of any applicable governmental or Internet authorities, issued or licensed to a Party, and any and all corresponding rights that have been now, or hereafter may be, secured throughout the world and any applications or registrations thereof and “Materials” shall mean any and all materials, including without limitation, (i) content, text, images, photographs, photograph negatives, illustrations, graphics, designs, icons, audio, video, layouts, artwork, drawings, flowcharts, (i) software, source code, object code, scripts, routines, (iii) data, information, databases, (iv) documents, documentation, reports, spreadsheets, manuals, (v) equipment, devices, computers, servers, controllers, switches, and (vi) storage media, disks, drives and other electronic and digital storage media.  Materials include all of the foregoing, no matter in what media, form or format, including without limitation, paper, electronic, digital, or otherwise. 
2. Use ofKMKMaterials and Intellectual Property.  KMK shall retain all ownership of, and all rights and title to, all of its Intellectual Property (defined below) and KMK Materials, including without limitation, any and all modifications or improvements thereto or derivative works thereof.  Nothing in this Agreement shall be construed as granting VENDOR any ownership right or interest in or to any KMK Materials or KMK Intellectual Property. VENDOR will only use materials provided by or on behalf of KMK consistent with and as contemplated by this Agreement and will not undertake any actions which would jeopardize the copyright, trademark, tradename and other intellectual property rights of KMK or its Affiliates in any such materials. Upon termination or expiration of this Agreement for any reason, VENDOR shall immediately return to KMK all originals and copies of KMK Materials and records, including without limitation, any electronic data, records, computers, electronic storage media or other equipment.  In lieu of return of the foregoing Materials and records, KMK may request VENDOR destroy said KMK Materials and records and provide KMK with declaration under penalty of perjury that VENDOR has complied with said request of KMK.  

1. VENDOR IP.For the avoidance of doubt, KMK agrees that Inventions shall not include (i) any documents, materials, inventions, know-how, trade secrets, improvements, processes or other intellectual property owned by VENDOR and used in the conduct of the Services, including without limitation, any and all modifications or improvements made thereto or derivative works made therefrom, whether or not such intellectual property is conceived during the time such Services are performed; or (ii) do not specifically relate to KMK or the Services provided to KMK.In addition, any and all materials and intellectual property which were or are created or developed by VENDOR as a result of, or by utilizing, any feedback, requests, suggestions, ideas, of KMK or its Affiliates (collectively, “Feedback”) shall be owned exclusively by VENDOR without royalty or payment to KMK. All of the foregoing in this Section 6.C shall be referred to herein as “VENDOR IP”.  VENDOR IP shall not extend to any specific or identifiable elements unique to KMK or its operations or the disclosure of any Confidential Information of KMK.  

7. INSURANCE

1. Coverage.  VENDOR will, at its own expense, provide and keep in full force and effect during the Term and for a period of two (2) years following the Termination Date the following kinds and minimum amounts of insurance as allowed by law:

1. Comprehensive general liability insurance which shall include bodily injury, property damage, independent contractor coverage, completed operations or products coverage, blanket contractual, and broad-form property damage with limits of at least $1,000,000 per occurrence.  KMK shall be named as an additional insured on such insurance policy. 

1. Workers’ compensation insurance as   required by the laws of the jurisdiction in which the Services are performed, and employer’s liability insurance with limits of at least $1,000,000 per occurrence. 

1. Errors & Omissions insurance with limits of at least $1,000,000 per occurrence and $2,000,000 in aggregate.  

1. Evidence of Coverage.  Within thirty (30) days after execution of this Agreement,VENDOR shall provideKMK with copies of all certificates of insurance evidencing the coverage required hereunder, which shall also state that KMK shall be provided with a minimum of thirty (30) calendar days prior written notice of any proposed cancellation or expiration without renewal, and five (5) business days prior written notice of any proposed change in carriers or material terms of coverage.   

8. INDEMNIFICATION

1. By VENDOR.  VENDOR shall indemnify, protect, defend and hold KMK and its Affiliates, and their respective employees, officers, directors, members, attorneys, agents, representatives, successors and assigns (each, a “KMK Indemnified Party“) harmless from and against all causes of action, liabilities, damages, penalties, costs, expenses, fines, claims, losses, suits, demands, liens, and all expenses of any kind or nature whatsoever (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses“) that may be incurred by, made, charged, or instituted against a KMK Indemnified Party, and which arise out of, result from or are based on (i) the material breach of this Agreement by VENDOR; (ii) the negligence or willful; (ii) allegations of infringement of any patent, copyright, trademark, or misappropriation of any trade secret relating to any Services or Deliverables; or (iii) misconduct of a VENDOR Indemnified Party (as defined below), except to the extent that such Losses are attributable to the negligence, wrongful act or omission, willful malfeasance or misconduct of any KMK Indemnified Party.   

1. By KMK.  KMK shall indemnify, protect, defend and hold VENDOR and its affiliates, employees, officers, directors, attorneys, agents, representatives, successors and assigns (each, a “VENDOR Indemnified Party“) harmless from and against all Losses that may be incurred by, made, charged, or instituted against a VENDOR Indemnified Party, and which arise out of, result from or are based on (i) the material breach of this Agreement by KMK; (ii) the negligence or willful misconduct of a KMK Indemnified Party; or (iii) VENDOR’s use of KMK’s materials as directed by KMK, except to the extent that such Losses are attributable to the negligence, wrongful act or omission, willful malfeasance or misconduct of any VENDOR Indemnified Party.  

1. Notification of Claims.  The Party wishing to seek indemnification hereunder (the “Indemnified Party“) shall notify the Party against whom indemnification is sought (the “Indemnifying Party“) in writing of any asserted claim within ten (10) business days of either discovery of the occurrence upon which the claim may be based or learning of the claim, whichever occurs first.  Failure to provide such notice, which substantially prejudices the Indemnifying Party’s ability to defend such claim or action, may invalidate any obligation of indemnification.  The Indemnified Party must authorize and permit the Indemnifying Party to exercise sole control of the defense and disposition of any claim or action, including all decisions related to litigation, appeal or settlement, provided, however, that the Indemnifying Party shall not settle any claims or action that would be deemed to confess wrongdoing on the part of the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, the Indemnified Party shall nevertheless be entitled to retain separate counsel at its own cost to participate in such matter; however, the Indemnifying Party shall have sole case management authority.  Each Party hereto shall cooperate with the other in every reasonable way to facilitate the defense of any such claim. 

9. INDEPENDENT CONTRACTOR

VENDOR’s relationship with KMK under this Agreement shall be that of an independent contractor.  VENDOR shall exercise its own discretion on the method and manner of performing the Services and KMK will not exercise control over VENDOR or its employees except insofar as may be reasonably necessary to ensure performance and compliance with this Agreement.  The employees, methods, and equipment used by VENDOR shall at all times be under VENDOR’s exclusive direction and control.  Nothing in this Agreement shall be construed to designate VENDOR, or any of its employees or agents, as employees, or joint venturers of KMK.  VENDOR is wholly responsible for withholding and payment of all federal, state and local income and other payroll taxes with respect to its employees, including contributions from them as required by law. 

1. DATA SECURITY AND PROTECTION 
2. Data and Software Security.When accessing KMK data, information and software, VENDOR shall be required to utilize KMK’s secure sign on and not shall not store any such data, information and software on its own hardware, software, storage media or facilities, nor shall it  grant access to others without prior written approval of KMK. VENDOR shall use reasonable efforts to protect against unauthorized access to, disclosure of, use of, destruction of, or alteration of, any and all any data, information or software, including without limitation, Customer Information and other Confidential Information, electronically stored on KMK’s computer systems, servers, devices, storage media, or facilities. 
3. B.   KMK EQUIPMENT. All equipment paid for by KMK or furnished by or on behalf of KMK in connection with this Agreement, including without limitation, in any Work Order, shall remain the exclusive property of KMK.  VENDOR shall use such equipment only as necessary to perform the Services and provide Deliverables in accordance with any applicable Work Order, or as otherwise instructed in writing by KMK.  Said equipment shall remain in the possession of VENDOR or in its facilities at all times.  Upon termination of this Agreement for any reason, VENDOR shall immediately return all of said equipment to KMK in the same condition as when it was provided to VENDOR except for ordinary wear and tear. 

11. MISCELLANEOUS

1. Publicity/Use of Name.  VENDOR shall not disclose the fact of, terms of, or subject matter of this Agreement to any third party without the prior written consent ofKMK.  VENDOR will not use the name or logo of KMK or its Affiliates, and any clients that are the subject of Work Orders under this Agreement, in advertising promotions or other commercial materials without KMK’s prior written consent. KMK may, without the prior consent of VENDOR, publicly disclose and use VENDOR’s name, logo, marketing materials, resume and VENDOR’s relationship with KMK, which relationship may include but not be limited to VENDOR’s participation in KMK’s Subject Matter Expert (SME) network. 

1. Notice.  Any notices, consents or other communications required or permitted under this Agreement must be in writing and shall be deemed to have been duly given as of the date it is (i)  delivered by hand; (ii) sent byemail with receipt confirmation; (iii) sent by registered or certified mail, postage prepaid, return receipt requested; or (iv) delivered by overnight courier, to the other Party at the address as set forth below, or to such other address or addresses as may be designated in writing by notice given to the other Party pursuant to this paragraph:  

If to VENDOR: _________________________ 

_________________________ 

_________________________ 
_________________________ 

If to KMK: KMK Consulting, Inc. 

Attn:  Michael Karbachinskiy 

23 Headquarters Plaza, North Tower, 7th Floor 

Morristown, NJ  07960   

1. No Conflict.  In the event there is a conflict between the terms and conditions of this Agreement and any Work Order or otherdocument attached hereto or thereto, the terms and conditions contained in this Agreement shall prevail.  No terms of any subsequent purchase order or invoice will add to, modify or supercede the terms of this Agreement.  

1. Force Majeure.  Neither Party will be responsible for any failure or delay in performance of this Agreementif the failure or delay is due to an event beyond the reasonable control and without the fault or negligence of the Party seeking to excuse performance, including without limitation, acts of God, acts of terrorism, war, labor disputes and strikes, fire, flood, riot, and unforeseen delays in third-party provided transportation or communications (a “Force Majeure Event“).  Any Party seeking to excuse or delay performance due to a Force Majeure Event under this Section 11.D will provide detailed written notice to the other Party of the nature and anticipated duration of the delay.  A Party claiming the benefit of a Force Majeure Event shall use reasonable efforts to avoid or overcome the causes affecting performance and diligently fulfill all outstanding obligations within thirty (30) days.  In the event that any such Force Majeure Event continues for in excess of sixty (60) days, either Party shall have the right to terminate this Agreement upon thirty (30) days notice to the other Party, provided that, if the Force Majeure Event ceases within such thirty (30) day period, this Agreement shall remain in full force and effect upon prior written notice to the other Party. 

1. E.Section Headings.The Section headings of this Agreement are for the convenience of the Parties only and in no way alter, modify, amend, limit, or restrict the contractual obligations of the Parties. 

1. AuditRights. During the Term and for three (3) years thereafter, KMK or its designated representative and any governmental agent which regulates KMK may, during business hours and upon reasonable advance notice to VENDOR (i) inspect, copy and audit all books, data, records and work products of VENDOR that relate to the Services;  (ii) confer with Personnel for the purpose of determining VENDOR’s compliance with the terms of this Agreement; and (iii) audit VENDOR’s supporting documentation for expenses and charges for which VENDOR has received reimbursement from KMK.  VENDOR will retain all applicable books and records for three (3) years following the Termination Date. 

1. Severability; Waiver. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision of this Agreement.  Waiver by either Party or the failure by either Party to claim a breach of any provision of this Agreement shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision hereof. 

1. Entire Agreement; Amendment.  This Agreement, the Work Orders and any schedules and exhibits attached hereto and thereto, constitute the entire understanding and agreement between the Parties with respect to the subject matter covered herein and supercedes any and all prior agreements, understandings, covenants, promises, warranties and representations, oral or written, express or implied, between the Parties that relates to the subject matter hereof.  This Agreement and any Work Order may not be amended or supplemented in any way except in writing, dated and signed by authorized representatives of both Parties.

1. Assignment.  VENDOR may not assign or transfer this Agreement or any part hereof without the express written consent ofKMK.  KMK may assign its rights and obligations under this Agreement without the consent of VENDOR. 

1. Subcontractors. VENDOR shall obtain KMK’s prior written consent before using any subcontractors to perform Services under a Work Order.  If written consent to use subcontractors is given by KMK, VENDOR shall be responsible for ensuring that each subcontractor executes an agreement with VENDOR, which agreement shall contain terms and conditions that are consistent with and at least as restrictive as those contained in this Agreement.  Notwithstanding the foregoing, VENDOR shall at all times be liable for the performance of any subcontractor(s). 

1. Compliance withKMK.  VENDOR agrees to comply with all KMK policies applicable to the Services which have been provided by KMK to VENDOR.   

1. Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflict of laws rules or principles.

1. Binding Effect.  This Agreement shall be binding upon and inure to the benefit of each Party and their respective affiliates, successors, legal representatives and permitted assigns. 

1. Survival.  All provisions of this Agreement which may reasonably be interpreted or construed surviving termination shall survive, including without limitationSections 1.G, 5, 6, 7, 8, 10 and 11. 
2. IN WITNESS WHEREOF, the Parties have caused this Master Services Agreement to be signed by their respective duly authorized representatives as of the Effective Date. 

KMK:/l,  KMK Consulting, Inc.   By:   Name:   Title:

VENDOR:  [INSERT]  By:   Name:   Title: