KMK Consulting, Inc. 

 

MASTER SUBSCRIPTION AND SERVICES AGREEMENT 

 

This MASTER SUBSCRIPTION AND SERVICES AGREEMENT, Exhibits, Schedules, Task Orders and Change Orders (collectively, the “Agreement”), is made as of the _____ day of __________________, 201__ (“Effective Date”) by and between KMK CONSULTING, INC., a corporation organized under the laws of the State of New Jersey, with offices located at 23 Headquarters Plaza, North Tower, 7^th Floor,  Morristown, New Jersey 07960 ("KMK"), and [INSERT], a  [e.g. corporation or limited liability company], organized under the laws of the State of [INSERT],with offices located at [INSERT] ("CUSTOMER”). 

 

WHEREAS, KMK provides business analysis consulting and CUSTOMER is a developer and manufacturer of _____________________________ [pharmaceutical products]; and 

 

WHEREAS, CUSTOMER desires to engage KMK, and KMK desires to be engaged, to provide consulting services, software and deliverables to CUSTOMER, to assist CUSTOMER with its business and market analyses as set forth in this Agreement. 

 

NOW THEREFORE, in consideration of the foregoing premises, and the mutual terms, conditions and covenants set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 

 

1. In addition to terms defined in the text, the following capitalized terms shall have the respective meanings set forth below: 
2. “Affiliate” means, with respect to either KMK or CUSTOMER, any corporation, limited liability company, company, partnership, joint venture and/or firm which controls, is controlled by or is under common control with KMK or CUSTOMER, as the case may be.  As used in this definition of “control” means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (ii) in the case of non-corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non-corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such non-corporate entity.  Affiliates of KMK include, without limitation, KMK Data Services Inc.
3. “Change Order”means a change order substantially in the form attached hereto as Exhibit “B.”, which is filled in and executed by the parties, which changes, modifies or amends any Task Order.  Any and all Change Orders, whether executed prior to, at the time of this Agreement, or thereafter, are incorporated into this Agreement, and made a part hereof. Each Change Order shall be sequentially numbered, e.g. “Change Order No. 1”, “Change Order No. 2”. 
4. “Control” means, with respect to any entity, the possession, directly or indirectly, of the right to appoint or remove a majority of the board of directors or the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise. 
5. “CUSTOMER Data” means any and all information entered or uploaded to the Software by or on behalf of CUSTOMER or an Affiliate.
6. “CUSTOMER Materials” means Materials provided by CUSTOMER, CUSTOMER’s Affiliate, or on behalf of CUSTOMER or CUSTOMER’s Affiliate, in connection with or related to this Agreement. 
7. “Deliverables”means the information and/or Materials to be provided by KMK to CUSTOMER as set forth in an applicable Task Order.  For the avoidance of doubt, the term “Deliverable” does not include the Software (including all modifications and/or enhancements to the Software), the Software documentation, KMK’s proprietary education and training content, and all pre-existing materials related to KMK’s Services processes and methodologies. 
8. "Intellectual Property" or “Intellectual Property rights”means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know how, copyrights, trademarks, and other industrial or intangible property rights of a similar nature worldwide; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions, and continuations in part of such applications; and all rights under corrections, reissues, reexaminations, patents of addition, extensions, and renewals of any such grant, registration, and/or right.    
9. “Materials” means, as applicable,  any and all materials or items, including without limitation, (i) software, source code, object code, scripts, routines, (ii) data, information, databases, (iii) content, text, images, photographs, photograph negatives, illustrations, graphics, designs, icons, audio, video, layouts, artwork, drawings, flowcharts, (iv) documents, documentation, reports, spreadsheets, manuals, marketing materials, business materials, (v) equipment, devices, computers, servers, controllers, switches, and (vi) storage media, disks, drives and other electronic and digital storage media. 
10. "Modification” means a change to the Software which changes the source code. 
11. “Services”means the services described in this Agreement to be performed by KMK including, as applicable, services described in a Task Order.   
12. "Software"means KMK’s commercially available software applications ordered by CUSTOMER via one or more Task Order(s).   
13. "Task Order”means a task order substantially in the form attached hereto as Exhibit “A”, which is filled in and executed by the parties that sets forth Services,  Deliverables, and if applicable Software, and includes, without limitation, time, scope, fees and expenses of the Services to be performed by KMK, the Software and the Deliverables to be provided by KMK, and which otherwise complies with Section 2.  Any and all Task Orders, whether executed prior to, at the time of this Agreement, or thereafter, are incorporated into this Agreement, and made a part hereof.  Task Orders shall be sequentially numbered, e.g. “Task Order No. 1”, “Task Order No. 2”. 
14. “Third Party Data”means data, databases or information provided by or owned by an entity other than the parties to this Agreement. 
15. “Third Party System”means any system, not owned by CUSTOMER or KMK, which CUSTOMER requires KMK to use to perform Services or provide Deliverables.  
16. “Updates” means Modifications or corrections to the Software which KMK generally makes available to its CUSTOMERs from time to time for the purpose of improving the functionality, operation or interoperability.
17. "Version"means each issuance of the Software, excluding third party software, identified by the numeral to the right of the decimal point (e.g., 3.1). 

 

2. SERVICES, DELIVERABLES AND SOFTWARE USAGE RIGHTS.
3. Services and Deliverables.  Subject to the terms and conditions of this Agreement, KMK shall perform the Services, including (if applicable) services related to implementation and optimization of the Software, and education and training, and provide the Deliverables to CUSTOMER as set forth in any applicable Task Order. KMK may subcontract the performance of certain of its obligations to Affiliates of KMK or to non-Affiliate third parties, including, but not limited to, consultants, provided that (a) such Affiliates or third parties perform those Services and/or provide Deliverables in a manner consistent with the terms and conditions of this Agreement, and (b) KMK remains liable for the performance of all such subcontractors including KMK Affiliates. 
4. Task Orders. The parties may enter into one or more Task Orders simultaneously with the execution of this Agreement or thereafter. Each Task Order will be mutually agreed upon by the parties and shall set forth the fees and expenses to be paid by CUSTOMER to KMK for Services and Deliverables.  Each Task Order shall become part of this Agreement upon execution thereof by the parties and shall include the following, as applicable:
5. Description and schedule of Services; 
6. Description and schedule of Deliverables; 
7. Software;
8. Subscription Term (as defined in 2.5 (c))
9. Fees;
10. Expenses;and 
11. Early Termination Fee. 

Neither CUSTOMER nor KMK is obligated under this Agreement to enter into or sign any Task Order. Except as otherwise specified in a Task Order; (i) fees are based on services purchased and not actual usage, (ii) payment obligations set forth in a Task Order are non-cancelable, (iii) fees paid are non-refundable, and (iv) the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Task Order. 

 

3. Change Orders.  In the event that KMK or CUSTOMER seek to have work performed which is not described in the Task Order, such as seeking a change in the Services or Deliverables, then CUSTOMER and KMK shall execute a Change Order.  Any Change Order that applies to a Task Order shall be deemed to be part of, and incorporated into said Task Order.  In the event that CUSTOMER wishes to implement a Change Order,  CUSTOMER shall submit a written request to KMK for a Change Order specifying such changes or revisions in detail.  Within five (5) business days of its receipt of a request for a Change Order, KMK shall review such request for Change Order and submit to CUSTOMER a proposed Change Order which is acceptable to KMK.CUSTOMER shall have five (5) business days from receipt of KMK’s proposal to accept or reject the proposed Change Order.  Upon CUSTOMER’s acceptance of such proposal, the Change Order, as supplemented and/or modified by KMK’s proposal, shall be executed by each party and shall amend and become part of the applicable Task Order. 
4. Third Party Data.
5. CUSTOMER Provided Third Party Data.  CUSTOMER authorizes KMK to, use Third Party Dataprovided by CUSTOMER in the performance of its Services and the creation of the Deliverables.  The details, specifications and costs associated therewith shall be set forth in the Task Order. KMK shall not be responsible for inaccurate or incomplete data provided by third parties. 
6. Third Party Data Not Provided By CUSTOMER.  CUSTOMER authorizes KMK to use Third Party Data which is not provided by CUSTOMER in the performance of its Services and the creation of Deliverables, so long as KMK shall have the authority at time of delivery of Deliverables to include said Third Party Data in the Deliverables.
7. Software Usage Rights.
8. General Rights. Subject to all terms and conditions in this Agreement and the applicable Task Order, KMK grants to CUSTOMER a limited, non-transferable, non-exclusive, world-wide right to access and use the Software and Software documentation for CUSTOMER’s internal business purposes.  The Software shall be made available to CUSTOMER as a service that CUSTOMER may access and use for the Subscription Term as set out in a Task Order(s). KMK will host and retain physical control over the Software and make the Software available through the Internet for access, use and operation by CUSTOMER through a web-browser. Certain functions of the Software may be downloaded for installation and use on a mobile device (“Mobile Apps”).  Such Mobile Apps may be accessed and used during the term of this Agreement and must be uninstalled upon the expiration or termination of the Agreement.  Other than as specifically set forth above and unless otherwise agreed to by KMK in writing, no provision under this Agreement shall obligate KMK to deliver or otherwise make available any copies of computer programs or code from the Software to CUSTOMER, whether in object code or source code form. 
9. General Restrictions. Except where applicable law prohibits such restrictions, CUSTOMER agrees that it shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially exploit or make the Software available to any third party other than as contemplated by this Agreement; (ii) make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software or Software documentation, or access the Software or Software documentation in order to build a similar or competitive product or service (or contract with a third party to do so); (iii) use the Software to send spam or otherwise send messages in violation of applicable laws; or (iv) use the Software to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. CUSTOMER may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within the Software or Software documentation.
10. Usage Limitations.  Each Task Order will set forth a user limit (or other usage limitation) and use of the Software by CUSTOMER is restricted to the number and type of users (or such other usage limitation) as set forth in the Task Order. A “User” means an employee of CUSTOMER.  If CUSTOMER desires to have a contractor or agent receive a User ID, they must first notify KMK and have such personnel execute a separate agreement confirming that they will comply with the terms of this Agreement. User rights are granted for a specific time period as set out in a Task Order and use of the Software by CUSTOMER is limited to such time period (“Subscription Term”). User rights may be transferred from one individual person to another but may not be shared or used concurrently by more than one person at a time. Login credentials may not be shared or concurrently used by more than one individual person.  CUSTOMER agrees to submit to reasonable audit of its compliance with any usage limits upon reasonable notice by KMK not more than once per calendar year. 
11. Major Release Upgrades.  Major release upgrades are typically undertaken up to three (3) times per year (i.e., a major release every four months).  For purposes of this Section a major release upgrade shall mean a release that introduces new features and functions to the Software.  KMK will provide CUSTOMER at least one (1) month prior notice (normally via email) before performing a major release upgrade. Such upgrade notice will include the window in which the upgrade will be conducted and any release notes. CUSTOMER will have access to such upgrades in a sandbox environment a minimum of two (2) weeks before the major release upgrade.  KMK will schedule all planned downtime, for major release upgrades during non-peak usage times (i.e., the hours from 5:00 p.m. Friday to noon Sunday, U.S. (EST).  Major release upgrades typically require downtime of two (2) to eight (8) hours.  

 

1. Patch Releases and Infrastructure Maintenance. KMK delivers patch releases and performs computing infrastructure maintenance (e.g., hardware maintenance) on an as needed basis. Patch releases correct defects in the Software and do not contain new features. KMK will notify CUSTOMER by email of the details of patch releases after implementation of the release. Patch releases and infrastructure maintenance are performed during non-peak usage times (i.e., from 5:00 p.m. to midnight, U.S. (EST) and generally require less than thirty (30) minutes of downtime, if any.  KMK will provide twenty-four (24) hours’ notice of any patch releases or infrastructure maintenance that will require more than thirty (30) minutes of downtime.  Advance notification may not be given for minor upgrades or patches and such upgrades and patches do not cause system unavailability (however, KMK will notify CUSTOMER by email of details of the minor upgrades/patches post implementation). 
2. Enablement of New Features.  All upgrades and patches are mandatory, but CUSTOMER may generally choose whether to enable new features made available through upgrades. 
3. CUSTOMER may not, (i) conduct security, integrity, penetration, vulnerability or similar testing on the Software, (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Software, or (iii) attempt to access the data of another KMK customer (whether or not for test purposes). 

 

3.  
4. Payment for Software, Services and Deliverables.  In consideration for KMK providing the Software, Services and/or Deliverables to CUSTOMER, as set forth in an applicable Task Order, CUSTOMER shall pay the applicable fees (“Fees”) and for pre-approved expenses ("Expenses") in the amounts and manner set forth in the applicable Task Order.  Additionally, CUSTOMER shall pay any applicable Early Termination Fee in the event that CUSTOMER terminates any Task Order or this Agreement for any reason other than the material breach of KMK.
5. Payment and Acceptance. KMK shall invoice CUSTOMER for all amounts due under Task Orders in accordance with the payment schedule set forth in the applicable Task Order. CUSTOMER shall pay all invoices within thirty (30) days of CUSTOMER’s receipt of such invoices.  Payment in full of any invoice shall be deemed acceptance by CUSTOMER of all Software, Services and Deliverables invoiced therein, and any partial payment of any invoice shall be deemed acceptance of all Software, Services and Deliverables invoiced therein, unless CUSTOMER specifically identifies to KMK in writing which Software, Services and Deliverables it is disputing.  Once the Software, Service or Deliverable is accepted, then KMK shall be deemed to have fully performed with respect to said Software, Service or Deliverable and shall have no further obligation with respect to said Service or Deliverable including, without limitation, as to any warranty, unless otherwise specified herein. If no payment schedule is set forth in any Task Order, KMK will provide CUSTOMER with periodic (usually on a monthly basis) itemized invoice for all amounts due under such Task Order at the rates set forth in the Task Order for Services performed and Software and Deliverables provided during the previous month. Except as otherwise set forth in any Task Order, all payments shall be in United States currency (U.S. Dollars).  All dollar amounts set forth in this Agreement are in United States Dollars.  In the event any Task Order is terminated by CUSTOMER, except by reason of material breach of KMK, then CUSTOMER shall pay, in addition to any other fees, expenses or payments for which CUSTOMER is obligated, an early termination fee ("Early Termination Fee") as set forth in any applicable Task Order.  CUSTOMER shall reimburse KMK for any charges related to the acquisition or use of Third Party Data or the use of Third Party Systems in connection with the performance of Services or providing of Deliverables.
6. Fees and Expenses described in this Agreement do not include the following taxes: federal, state or local sales, use, property, excise, service, or other taxes now or hereafter incurred or levied with respect to the goods or services provided by KMK pursuant to this Agreement. Whenever applicable, CUSTOMER shall remit such taxes directly to the applicable tax authorities. CUSTOMER shall reimburse KMK for any such taxes or amounts in lieu thereof paid or payable by KMK with respect to any such taxes on such good or services (excepting only taxes on KMK’s net worth or income). Remittance of the reimbursement for such taxes is due upon receipt of invoice from KMK.
7. Late Payments and Late Fees.  Payments that are not paid within the time specified in Section 3.2above shall be subject to interest at a rate of one percent (1.0%) per month (or such lesser rate, as may be the maximum permissible rate under applicable law).  Such interest shall accrue until the entire amount due, including any accrued interest, is paid in full.   

 

4. TERM AND TERMINATION.
5. Term. This Agreement shall start on the Effective Date and remain in effect until termination pursuant to Section 4.2(Termination). 
6. Termination
7. Termination Without Cause. Either party may terminate this Agreement without cause upon ninety(90) days’ prior written notice to the other party (“Notice of Termination Without Cause”); provided the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Task Order. The termination date stated in the Notice of Termination is the “Without Cause Termination Dat”
8. Termination For Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement; provided that the party seeking termination (“Non-Breaching Party”) shall provide the breaching party (“Breaching Party”) with written notice of such material breach (“Notice of Breach”) and the opportunity to cure the material breach within thirty (30) days from receipt of the Notice of Breach (or where such breach is not susceptible to cure within a thirty (30) day period, to commence and diligently pursue the cure thereof) (“Cure Period”); provided further, that if the material breach is for non-payment of money by CUSTOMER, then the Cure Period shall be seven (7) days.  The Notice of Breach must be sufficiently detailed so the Breaching Party may have sufficient information to undertake a cure.  In the event that the breach is not cured within the applicable Cure Period, then the Non-Breaching Party may serve upon the Breaching Party written notice of termination for breach (“Notice of Termination for Breach”) stating that this Agreement shall terminate effective upon delivery of the Notice of Termination for Breach (“Termination Date For Breach”).  
9. Termination For Distress of Other Party. Either party may terminate this Agreement or any Task Order for the other party’s distress (“Distressed Party”), as set forth below, immediately upon giving notice to the Distressed Party, without any right to cure, upon, (i) the Distressed Party becoming insolvent, (ii) the Distressed Party making a general assignment for the benefit of creditors of the Distressed Party, or(iii) sixty days after: (a) entry of an order for relief under Title 11 of the United States Code as to the Distressed Party if said case is not dismissed within said sixty-day period, (b) the appointment of a trustee in bankruptcy of the Distressed Party or a receiver of the Distressed Party or its assets, if said appointment is not vacated within sixty (60) days or the action is not dismissed within said sixty (60) days, unless, its trustee or receiver provides to KMK adequate assurances in writing, reasonably acceptable to KMK, of the ability and willingness of CUSTOMER to fulfill all of its obligations under this Agreement or (c) an action under any state insolvency or similar laws is filed as to Distressed Party for the purpose of reorganization, or liquidation, unless said action is dismissed within said sixty-day period.
10. Effect of Termination.  Unless otherwise agreed to by the parties in a signed writing upon termination of this Agreement for any reason:
11. CUSTOMER shall immediately pay KMK (i) any and all amounts due under any outstanding invoices, (including without limitation work on incomplete Deliverables), (ii) any applicable Early Termination Fee, and (iii) for any and all work performed through the termination date immediately upon receipt of KMK’s invoice for same, including without limitation, for work performed on incomplete Services and Deliverables.
12. Termination of Task Order.  Any party may terminate any Task Order without cause upon 60 days prior written notice.  Unless otherwise agreed to in a signed writing by the parties, KMK shall cease work on the Task Order within 60 days of receipt of the notice and shall invoice CUSTOMER for all work performed.  CUSTOMER shall pay said invoice upon receipt.  CUSTOMER shall be subject to an Early Termination Fee set forth in the applicable Task Order for terminating said Task Order without cause.
13. Transition Assistance.  In order to assist CUSTOMER in ensuring it is able to make an orderly transition from use of the Software and any Services under any Task Order that is unexpired at time of termination notification, KMK shall perform the following:  Upon termination or expiration of this Agreement for any reason other than termination for breach by CUSTOMER, and upon request by CUSTOMER made thirty (30) or more days before the termination date, KMK shall continue to provide the Software for an additional 90 days after the termination date (the "Transition Period") under the same terms and per-unit pricing as applied immediately before the termination date, subject to CUSTOMER's execution, before the termination/expiration date, of an Task Order for such continued Software subscription.  Any assistance to be provided by KMK to CUSTOMER besides the Software subscription services shall be subject to the parties' execution of a Task Order and shall be provided at rates no higher than the rates set forth in the most recent Task Order entered into by the parties for the same consulting resource.  In no event shall KMK be required to provide a competitor with access to the Software or KMK’s Confidential Information.  Notwithstanding any termination of this Agreement under this Section 4, the terms of this Agreement shall continue to govern KMK’s provision of the Software and any Services during the Transition Period as if it had not been terminated.  

 

5. OWNERSHIP AND LICENSES.
6. CUSTOMER License to KMK.  KMK acknowledges that it has no claim to any ownership of CUSTOMER Materials provided to KMK in connection with this Agreement. During the Term of this Agreement, CUSTOMER hereby grants to KMK a non-exclusive and non-transferable limited right and license (without any right to sublicense) to CUSTOMER Materials to use, reproduce, modify, and create derivative works for use solely in connection with the Services and Deliverables.  

 

2. KMK License to CUSTOMER. 
3. Except as may otherwise be stated in an applicable Task Order, and subject to CUSTOMER’s performance of its obligations pursuant to this Agreement  including, without limitation, payment of all Fees and Expenses as set forth in Sections 2and 3, KMK hereby grants to CUSTOMER a perpetual, non-transferable, worldwide, license to use, copy and make derivative works of (except as set forth below) only for the internal business purposes of CUSTOMER and CUSTOMER Affiliates (and not to provide service for others), the Deliverables provided by KMK as set forth in an applicable Task Order. 
4. Notwithstanding Section 5.2(a), if KMK grants to CUSTOMER the right to access and use the Software pursuant to a Task Order, any right to access and use such Software shall exclude the right to create derivative works. CUSTOMER may permit its Affiliates to use the Software in accordance with this Agreement.CUSTOMER acknowledges and agrees that the use of the Software may be restricted to use by CUSTOMER or CUSTOMER’s Affiliates’ for its own internal business purposes, and not for the purpose of providing services to others. 
5. CUSTOMER is responsible for compliance by CUSTOMER Affiliates with all the terms and conditions of this Agreement including, without limitation, the licenses granted in this Section 5.2. 

 

 

3. Ownership of KMK Intellectual Property. 
4. The parties acknowledge and agree that: 
5. any and all Materials, Software (including, for purposes of this Section 5.3, any and all source code or machine readable code related to the Software, and  formulas, processes, procedures, methodologies, and know-how related to proprietary education or training content, the Software or the development of the Software), Software documentation and Intellectual Property owned by KMK or KMK Affiliates prior to the Effective Date of this Agreement shall remain the owned Intellectual Property of KMK or its Affiliates including, without limitation, any and all Modifications, improvements made thereto or derivative works made therefrom, 
6. any and all Materials, Software, Software documentation, Deliverables and Intellectual Property (including, without limitation, all inventions, business methods, methodologies, or know-how associated with the Services and/or Deliverables), conceived, created, developed and/or reduced to practice by KMK or its Affiliates on or after the Effective Date shall belong exclusively to KMK or its Affiliates including, without limitation, all Modifications and/or enhancements to the Software or improvements made thereto (regardless of the source of inspiration for any such enhancement or Modification and regardless of whether CUSTOMER has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within the Software, or derivative works made therefrom, and
7. any and all Materials, Software, Software documentation, Deliverables and Intellectual Property or Modifications, improvements made thereto or derivative works made therefrom, which were or are created or developed by KMK or its Affiliates as a result of, or by utilizing, any feedback, requests, suggestions, ideas, of CUSTOMER or its Affiliates (collectively, “Feedback”) shall be owned exclusively by KMK or its Affiliates without royalty or payment to CUSTOMER, and further, that KMK or its Affiliates may use, disclose, reproduce, license, or incorporate the foregoing into the Intellectual Property of KMK or its Affiliates or otherwise distribute the Feedback as it sees fit, without royalty or payment to CUSTOMER. 
8. Notwithstanding any other term of this Agreement, KMK may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Software, which may include aggregated and anonymized data based upon CUSTOMER Data.  KMK reserves to itself all rights that are not expressly granted pursuant to this Agreement. All of the foregoing in this Section 5.3shall be referred to herein as “KMK IP.”   
9. CONFIDENTIAL INFORMATION
10. Definition of Confidential Information.  “Confidential Information” means all information which has or may acquire independent economic value from not being available or known to the general public or which would constitute a trade secret or confidential business information under the laws governing this Agreement, and which is used, developed, obtained or accessed by the parties relating to the subject or business of this Agreement, including, without limitation, data, ideas, inventions, information, improvements, files, accounting records, software programs and related documentation, computer codes, unique selling and servicing methods and business techniques, training service and business manuals, vendor and product information, customer and prospective customer lists and information, supplier lists and information, and all other business related information, whether reduced to writing, maintained on any form of electronic media, or maintained in the mind or memory of either party or their respective agents and employees, and all copies and any tangible embodiments thereof in whatever form or medium.  As to KMK, the term “Confidential Information” also includes the features and functions of the Software that are not available to the general public via the public internet (including screen shots of the same), future product plans, any Software documentation or specifications provided to CUSTOMER and the commercial terms (including pricing) of this Agreement and any Task Order. Confidential Information does not include information that: (i) is or becomes publicly available or generally known in the applicable industry through no fault of the Receiving Party (defined below); (ii) was already known to the Receiving Party without any obligation of confidentiality at the time it was disclosed to the Receiving Party; (iii) is independently developed by or on behalf of the receiving party without reference or access to such information; or (iv) is received from a third party who is under no obligation of confidentiality to the Disclosing Party (defined below). 
11. Confidential Designation.  Any written information or documents (whether in paper, electronic, digital, or other form) which the Disclosing Party seeks to be considered "Confidential Information," must contain the designation "Confidential."  Any non-written communication, such as oral communications, must be accompanied at the time of disclosure or within five (5) business days thereafter, with a written notification that the information is "Confidential." Notwithstanding the forgoing, Confidential Information requiring access through or downloaded from CUSTOMER’s file transfer protocol (“FTP”) site need not be accompanied by a “Confidential” designation to be considered Confidential Information and subject to the confidentiality obligations of this Section 6. For avoidance of doubt, KMK IP and the Deliverables (except for CUSTOMER Materials incorporated therein) shall be deemed Confidential Information of KMK without the necessity of marking or other notification. The terms of this Agreement are also considered by the Parties to be Confidential Information without marking or other notification.
12. Duty Not To Disclose.  Except to the extent permitted by this Agreement or as otherwise agreed by the parties in writing, the parties agree that the party receiving Confidential Information hereunder (the “Receiving Party”) shall keep completely confidential, shall not publish or otherwise disclose and shall not use directly or indirectly for any purpose any Confidential Information furnished to it by the other party (the “Disclosing Party”) pursuant to this Agreement or otherwise relating to any transaction contemplated hereby, including Confidential Information provided to it prior to the Effective Date of this Agreement. The Receiving Party may disclose Disclosing Party Confidential Information, to its employees, contractors, subcontractors and agents on a need-to-know basis as necessary in connection with the transactions contemplated by this Agreement, provided that the Receiving Party in question shall in each case ensure that each recipient is bound by confidentiality obligations no less restrictive than those set forth in this Section 6. 
13. Terms of Agreement. The Receiving Party may disclose the terms of this Agreement on a need-to-know basis, to (i) its respective agents, employees, officers and directors, legal, tax, financial, investment and professional advisors, only on a need-to-know basis, and only if the foregoing parties are bound and obligated by confidentiality obligations no less restrictive  as those set forth herein; or (ii) prospective bona fide companies or investors with whom Receiving Party may merge, acquire, consolidate, purchase, sell to or enter into a strategic alliances, provided, however, that CUSTOMER shall not disclose the terms of this Agreement to any competitor of KMK without  the signed written consent of KMK, and CUSTOMER shall, in each case, obtain from the proposed third party recipient a written confidentiality agreement containing confidentiality obligations no less restrictive than those set forth in this Section 6.  
14. Authorized Disclosure.  In the event the Confidential Information is being sought by operation of law, including without limitation, a subpoena, court order, or court proceeding ("Court Order"), then the Receiving Party shall promptly notify the disclosing party of the Court Order by providing a copy of the Court Order to Disclosing Party, so that the Disclosing Party may seek protection against the disclosure of the Confidential Information, including without limitation, applying to a court for a protective order or seeking a confidentiality agreement.  The Disclosing Party shall be permitted to disclose only as much information being requested in the Court Order, and subject to any protective order or other confidentiality arrangements entered into among the parties to the Court Order and the Disclosing Party.  The Receiving Party must reasonably cooperate with the Disclosing Party at the Disclosing Party’s expense to secure appropriate confidential protection of the Confidential Information.  
15. Remedies. The parties acknowledge that disclosure of Confidential Information contrary to the terms of this Agreement may cause irreparable harm and significant injury to the parties, for which damages at law may not be an adequate remedy, and agrees that a party shall have, in addition to any other rights or remedies available to it at law or in equity, the right to seek from any court of competent jurisdiction equitable or injunctive relief without the necessity of posting a bond or other security. 
16. Survival. Section 6 shall survive termination or expiration of this Agreement for a period of five (5) years, except that for trade secrets, this Section 6 shall continue in effect until such time as such trade secrets are no longer deemed trade secrets under applicable law.

 

7.  

7.1    Warranty.  KMK hereby warrants (i) that the Services shall be performed in a commercially reasonable manner; (ii) that the Software will perform substantially in accordance with the Software documentation; and (iii) KMK will not materially decrease the overall functionality of the Software during the term.  If KMK fails to perform a Service as warranted in the foregoing sentence then, at KMK’s sole discretion, KMK may re-perform Service.  In the event that KMK elects not re-perform Service, or if after re-performing Service, said Service is not performed in a commercially reasonable manner, then CUSTOMER’s sole remedy, shall be non-payment for so much of the Service that is not performed in a commercially reasonable manner. CUSTOMER must notify KMK in writing of any claim that the Software does not perform substantially in accordance with the Software documentation no later than thirty (30) days after the last day of the month in which the asserted non-performance occurred.   

7.2   DISCLAIMER OF WARRANTY.  CUSTOMER HEREBY EXPRESSLY AGREES THAT, EXCEPT AS PROVIDED IN THIS AGREEMENT, THE DELIVERABLES AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT OR TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, KMK DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  KMK DOES NOT WARRANT THAT THE SERVICES, DELIVERABLES INCLUDING, WITHOUT LIMITATION, ANY DATA, WILL MEET CUSTOMERS’ REQUIREMENTS, BE ERROR-FREE OR BE ABLE TO BE UPLOADED TO CUSTOMER’S SYSTEM.  KMK DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT THE SOFTWARE OR DELIVERABLES WILL RESULT IN COMPLIANCE, FULFILLMENT OR COMFORMITY WITH THE LAWS, RULES, REGULATIONS, REQUIREMENTS OR GUIDELINES OF ANY GOVERNMENTAL AGENCY.   

 

8.  
9. Indemnification by KMK.  After the Effective Date,   KMK shall, at its expense, defend or at its option, settle any claim, action or allegation (collectively, “Claims”) brought against CUSTOMER alleging that the Software or any unmodified Deliverable infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into. In the event any infringement claim, action or allegation is brought or threatened, KMK may, at its sole option and expense: (a) procure for CUSTOMER the right to continue use of the Software, Deliverable or infringing part thereof; (b) modify, amend or replace the Software, Deliverable or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is in KMK’s opinion commercially practicable, (c) terminate this Agreement (or the portion of any Task Orders for allegedly infringing materials) and refund to CUSTOMER the prorated amount of the fees prepaid by CUSTOMER under the relevant Task Orders that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.  The foregoing obligations will not apply to the extent the infringement arises as a result of (i) any use of the Software in a manner expressly prohibited by this Agreement; or (ii) any use by CUSTOMER of the Software in combination with other products, equipment, devices, software, systems or data not supplied by KMK to the extent such claim is directed against such combination; provided that this exclusion shall not be applicable to combinations with hardware, software or other technology required to access and use the Software (e.g., a web browser, an internet connection, a personal computer upon which certain KMK applications are built). This Section states the entire liability of KMK with respect to infringement of any patent, copyright, trade secret or other Intellectual Property rights by the Services, Software or Deliverables or any portion thereof.
10. Procedure for Indemnification by KMK. KMK shall not be obligated to provide any defense or indemnification for a Claim unless CUSTOMER (a) promptly notifies KMK in writing of any such Claim; (b) provides KMK with reasonable assistance to settle or defend such Claim at KMK’s own expense; and (c) allows KMK to control the defense and/or settlement of such Claim, at KMK’s own expense; provided, however, that KMK shall not, without the CUSTOMER’s consent (such consent not to be unreasonably withheld, delayed or conditioned), agree to any settlement which requires any written admission of wrongdoing on the party of CUSTOMER. CUSTOMER shall have the right, at its own expense, to hire counsel and appear in any action, subject to KMK’s sole right to control the defense and settlement thereof.
11. Indemnification by CUSTOMER.  After the Effective Date, CUSTOMER shall defend and indemnify KMK, KMK Affiliates, and each of their officers, directors, members, managers, employees, agents representatives and subcontractors, from and against any and all Claims (as defined above) arising out of or related to (i) use of CUSTOMER Materials, CUSTOMER Intellectual Property or other items or materials provided by CUSTOMER, its Affiliates, or on their behalf, including without limitation for infringement arising out of or related to any United States Intellectual Property Rights, (ii) use of any Third Party Data which CUSTOMER requires KMK to use in connection with the performance of any Service or Deliverable or otherwise in any Task Order, (iii) use of any Web site owned or operated by or on behalf of CUSTOMER or its Affiliate, (iv) violation of this Agreement by CUSTOMER, and (v) CUSTOMER’s use of the Software or Deliverables in violation of this Agreement including, without limitation, the reproduction, publication, transmission, and distribution of the Deliverables, in any form, format or media, whether now existing or created in the future, except to the extent that such Claims are attributable to the negligence, gross negligence, wrongful act or omission, willful malfeasance or misconduct of KMK, KMK Affiliates, and each of their officers, directors, members, managers, employees, agents, representatives and subcontractors.
12. Procedure for Indemnification by CUSTOMER.CUSTOMER shall not be obligated to provide any defense or indemnification unless KMK (a) promptly notifies CUSTOMER in writing of any such Claim; (b) provides CUSTOMER with reasonable assistance to settle or defend such Claim at CUSTOMER’s own expense; and (c) allows CUSTOMER to control the defense and settlement of such Claim, at CUSTOMER’s own expense; provided, however, that CUSTOMER will not, without the KMK’s consent (such consent not to be unreasonably withheld, delayed or conditioned), agree to any settlement which requires a written admission of wrongdoing by KMK..  KMK shall have the right, at its own expense, to hire counsel and appear in any action, subject to CUSTOMER’s sole right to control the defense and settlement thereof.

 

9. LIMITATION OF DAMAGES AND LIABILITY. 
10. LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: 
11. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR OF ANY LIMITED REMEDY.  NO PARTY SHALL APPLY FOR, SEEK OR OTHERWISE REQUEST FROM ANY COURT, RELIEF OR REMEDY IN THE FORM OF EXEMPLARY OR PUNITIVE DAMAGES.
12. EXCEPT FOR KMK’S OBLIGATIONS FOR INDEMNIFICATION PURSUANT TO SECTION 8 AND CONFIDENTIALITY PURSUANT TO SECTION 6, IN NO EVENT SHALL KMK’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THIRD PARTY CLAIMS, DEATH OR BODILY INJURY, AND WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO KMK  PURSUANT TO THE APPLICABLE TASK ORDER THAT GIVES RISE TO THE CLAIM AS OF THE DATE THE SUBJECT CLAIM ACCRUES.
13. AS TO KMK’S OBLIGATIONS FOR INDEMNIFICATION PURSUANT TO SECTION 8 AND CONFIDENTIALITY PURSUANT TO SECTION 6, KMK’S MAXIMUM LIABILITY SHALL NOT EXCEED THE AMOUNT OF INSURANCE COVERAGE MAINTAINED BY KMK FOR COMMERCIAL OR COMPREHENSIVE GENERAL LIABILITY INSURANCE.
14. Limitation On Actions.  Any action by CUSTOMER must be commenced within one year of accrual of said action; provided, however, that any claim by KMK for payment of Fees or Expenses may be commenced within two years from when the payment was due, or from the date of last payment made by, or on behalf of CUSTOMER.
15. SEVERABILITY OF PROVISIONS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. 
16. NO-SOLICITATION.

Unless otherwise agreed upon in a signed writing by the parties, during the Term of this Agreement, and for a period of 18 months after the termination of this Agreement, CUSTOMER shall not directly or indirectly, for itself or others, hire, engage, solicit or attempt to induce any person or entity who was or has been an employee, consultant, independent contractor or worker of KMK or a KMK Affiliate to become hired, engaged by CUSTOMER or otherwise work for CUSTOMER, including without limitation, hiring said person to perform services for CUSTOMER whether as an employee, consultant, independent contractor or otherwise, to provide competing products and services, whether for itself or others, including without limitation, providing market or business analytical or statistical analysis services or deliverables for itself, for its Affiliates, or for others, or the provisioning of personnel to others to provide such services or deliverables.  The parties agree that the foregoing restriction shall not prohibit CUSTOMER’s placement of advertising of general circulation that may be received or viewed by KMK personnel. 

 

11. INDEPENDENT CONTRACTOR.

All Services will be rendered by KMK as an independent contractor for federal, state and local income tax purposes and for all other purposes.  KMK will not in any way represent itself to be a partner or joint venture of or with CUSTOMER.  This Agreement does not create an employer-employee relationship between CUSTOMER and KMK or any employee, subcontractors, Affiliate of KMK, or any KMK personnel. KMK is acting under this Agreement as an independent contractor with full power and authority to determine the means, manner and method of performance of KMK’s duties. KMK shall be responsible for and shall withhold and/or pay any and all applicable federal, state or local taxes, payroll taxes, workers’ compensation contributions, unemployment insurance contributions, or other payroll deductions from the compensation of KMK’s employees and other KMK personnel. 

 

 

12.  

Each party hereto shall maintain insurance during the Term of this Agreement and any renewal thereof, as follows: (i) comprehensive or commercial general liability insurance with combined limits of not less than $1,000,000 per occurrence and $1,000,000 per accident for bodily injury, including death, and property damage; and (ii) workers’ compensation insurance in the amount required by the law of the state(s) in which the KMK’s workers are located and (iii) employers’ liability insurance with limits of not less than $1,000,000 per occurrence. 

 

 

13.  

Neither party may use the other party’s name or trademark on its Web site for promotional purposes or in any form of advertising, promotion or publicity, including without limitation, press releases, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that a party is not prohibited from using the other party’s name or trademark in filings with the United States Securities and Exchange Commission or foreign equivalent, the United States Food and Drug Administration, or other governmental agencies, or when required by law to make a public disclosure. 

 

14.  

All notices must be in writing and sent to the address for the recipient set forth below or at such other address as the recipient may specify in writing under this procedure.  All notices must be given (a) by personal delivery, with receipt acknowledged, or (b) by first class, prepaid certified or registered mail, return receipt requested, or (c) by nationally recognized prepaid express delivery service.  Notices will be effective upon receipt or at a later date stated in the notice, provided, however, that notices under this Section may be sent via e-mail or fax, but only if the e-mail or fax is affirmatively acknowledged in a writing by the recipient as having been received, which, in the case of a fax, the acknowledgment must be signed by a representative of the recipient, and in the case of an e-mail, the acknowledgement must contain an electronic signature or typed name of the recipient instead of a signature; for clarity, an automated fax confirmation or e-mail read receipt or delivery receipt is not sufficient to qualify as an affirmative acknowledgement for purposes of this Section.  Notices shall be sent to the addresses below, in accordance with the provision above: 

 

If to CUSTOMER:	If to KMK:
_________________________    _________________________    _________________________    _________________________	KMK Consulting Inc.  ATTN: Michael Karbachinskiy, President  23 Headquarters Plaza, North Tower, 7th Floor  Morristown, NJ  07960  Fax:973-536-0702  Email:Michael.Karbachinskiy@kmkconsultinginc.com
With a copy to:   ______________________   ______________________   ______________________

15.  

KMK has no knowledge that either KMK personnel or the personnel of any of its Affiliates, and each of their respective officers and directors, as applicable: (a) have been debarred and are subject to a pending debarment, and will not knowingly use in any capacity in connection with the Services, any person who has been debarred or is subject to a pending debarment, pursuant to section 306 of the United States Food, Drug and Cosmetic Act, 21 U.S.C. § 335(a), and (b) are ineligible to participate in any federal and/or state healthcare programs or federal procurement or non-procurement programs (as that term is defined in 42 U.S.C. 1320a-7b(f)), including, but not limited to, Medicare, Medicaid and Civilian Health and Medical Program of the Uniformed Services.   

 

16. DATA AND RECORDS
17. Data Protection.  KMK agrees to use reasonable and appropriate technical, organizational, and physical controls for the purpose of protecting personal data (as defined by applicable data protection legislation) collected or used on behalf of CUSTOMER from loss or destruction, or unauthorized access, use, or disclosure.  
18. Data Security.  KMK will maintain all electronically stored Confidential Information in a secure area reasonably protected from fire, theft, and destruction.  KMK will maintain a complete and archived copy of all Records (as defined below) and Deliverables generated under this Agreement, back-up and protect such Records on a regular basis and in accordance with industry standards, and will at all times store and maintain all computerized Records and Deliverables in accordance with current commercially reasonable standards for the industry for limiting accesses to authorized personnel.
19. Records; Record Retention.  KMK will maintain all materials, data and documentation obtained or generated by KMK in the course of preparing for and providing Services, including all computerized records and files (collectively, the “Records”). All original Records will be retained by KMK for a minimum period of three (3) month following completion of the applicable Task Order (“Minimum Retention Period”), or longer if required by applicable law or regulation. KMK will, at the direction and written request of CUSTOMER, promptly deliver Records to CUSTOMER or its designee, or dispose of the Records, unless the Records are required to be retained by KMK by applicable law or regulation.  Such request by CUSTOMER must be submitted at least 14 days prior to the expiration of the Minimum Retention Period.  KMK may retain one (1) copy of any Record if reasonably necessary for regulatory, insurance or legal purposes, subject to KMK’s obligations of confidentiality and non-use under this Agreement.
20. WORKAND DATA STORAGE AT THIRD PARTY FACILITIES.   

In connection with performing Services and providing Deliverables set forth in any Task Order, KMK may store data (including without limitation, all information, data, text, user submissions and transmissions, applications, programs and other materials furnished, directly or indirectly to KMK by or on behalf of CUSTOMER (“CUSTOMER Information”), including, but not limited to, CUSTOMER’s Confidential Information, on servers owned by, leased by, or licensed to KMK or its Affiliates located in facilities in the United States or otherwise controlled by KMK or its Affiliates(collectively, “KMK Servers”), or any third party infrastructure and host providers used by KMK (collectively, “KMK Third Party Servers”). KMK shall use backup servers or make backup copies of data or files containing any such CUSTOMER Information or CUSTOMER’s Confidential Information, only in the USA.  KMK shall not use any third party facilities to store CUSTOMER’s Confidential Information unless (i) said third party has an obligation of confidentiality at least as restrictive as the duty of confidentiality of KMK set forth in this Agreement, or (ii) CUSTOMER’s Confidential Information is protected from access by said third party by reason of password protection, encryption, physical lock and key, or other reasonable security measures. 

 

18. CUSTOMER EQUIPMENT

All equipment paid for by CUSTOMER or furnished by or on behalf of CUSTOMER for the performance of the Services will remain the exclusive property of CUSTOMER.  KMK shall use such equipment only as necessary to perform the Services and provide Deliverables and in accordance with any written instructions provided by CUSTOMER or as set forth in the applicable Task Order. The equipment shall remain in facilities owed by, leased by, or licensed to KMK or its Affiliates or their subcontractors, at all times. 

 

 

19.  
20. Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party, including without limitation, fire, labor dispute (except due to the employees of the party seeking the protections of this clause), war, insurrection, riot, act of government, or terrorism (a “Force Majeure Event”) shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance. Any party seeking to excuse or delay performance due to a Force Majeure Event under this Section 20. 1will 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 prior written notice to the other party, provided that, if the Force Majeure Event ceases within such thirty (30) day notice period, this Agreement shall remain in full force and effect. 
21. No Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action.
22. Governing Law and Forum Court. This Agreement will be governed by and is construed in accordance with the internal laws of the State of New Jersey without regard to its rules concerning conflicts of laws. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, then United States of America law, rules, and regulations shall prevail and govern. The parties agree that any dispute relating to this Agreement shall be brought in the local, state or federal courts located within the State of New Jersey and that such courts shall have exclusive jurisdiction, and that in the case of state court, the venue shall be Morris County, and in the case of federal court, the vicinage shall be Newark.
23. Assignment. Neither party shall assign or transfer this Agreement in whole or in part to any third party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that either party may assign this Agreement, in whole or in part, (a) in connection with the transfer or sale of all or substantially all of its assets or the line of business or products or services to which this Agreement relates, (b) to a successor entity or acquirer in the event of an acquisition, merger, consolidation or change of control, or (c) to any Affiliate of a party, provided that each such assignee agrees in writing to assume all duties and obligations of the assigning party pursuant to this Agreement. Notwithstanding, anything to the contrary in this Section, CUSTOMER shall not assign this Agreement to any competitor of KMK, without the consent of KMK, which consent shall be in KMK’s sole and absolute discretion.  Any purported assignment in violation of this Agreement shall be null and void. 
24. CUSTOMER’s Use of Third Party Licensed Data. To the extent CUSTOMER stores data in the Software that has been purchased or licensed from third parties, CUSTOMER is responsible for ensuring its use, processing, reporting against, combination, comingling and manipulation of such data is in compliance with its agreements with the data provider, and CUSTOMER will, indemnify and hold KMK harmless against any claims by such third party data providers arising from CUSTOMER’s use of such third party data in the Software.
25. Agreement Binding.This Agreement shall be binding upon, and inure to the benefit of the parties and their respective legal representatives, heirs, successors and permitted assigns. 
26. Injunctive Relief.  The parties agree that any breach of the provisions of this Agreement relating to Intellectual Property Rights, confidentiality, indemnification or non-solicitation may cause the aggrieved party irreparable harm, and that such party may be entitled to seek injunctive relief therefor, in addition to such other rights and remedies as may be available to it.
27. Attorneys’ Fees. CUSTOMER shall pay KMK reasonable attorneys’ fees and expenses related to any litigation by KMK seeking enforcement of this Agreement and collection of any all fees and payments due KMK, including without limitation, expenses and costs of suit, and for work done prior to instituting suit in attempt to settle or mediate the dispute. 
28. KMK assumes no responsibility for delays or problems that result from CUSTOMER’s computing or networking environment, CUSTOMER’s third party vendors and/or CUSTOMER’s local or long distance telephone carriers or ISPs.  
29. Entire Agreement. This Agreement and any incorporated Task Orders and Change Orders constitute the entire agreement between CUSTOMER and KMK and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof.  
30. Conflicting Task Order or Change Order. In the event that any provisions in any incorporated Task Order or Change Order are in conflict with or inconsistent with the provisions in this Agreement, the provisions in this Agreement shall control any such conflicting or inconsistent provisions, with the exception of any provisions as to manner of payment, in which case, the Task Order or Change Order shall control.  
31. Amendments. This Agreement may not be amended unless such amendment is in writing and signed by both parties hereto; provided however, that said signed writing may not be a Task Order or Change Order unless said the Task Order or Change Order expressly states that it is modifying, amending, or changing this Agreement, and expressly references the provision or provisions being modified, amended or changed. The terms and conditions appearing on any purchase order issued by CUSTOMER for this Agreement, if any, shall not change, add to, or modify the terms or conditions of this Agreement and shall have no effect.
32. Severability and Modification.  The provisions of this Agreement are severable.  If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, in whole or in part, the remaining provisions or enforceable parts thereof will not be affected thereby and will be enforced to the fullest extent permitted by law.  In addition, should any provision or any portion thereof ever be adjudicated by a court of competent jurisdiction to exceed the time or other limitation permitted by applicable law as determined by such court in such action or proceeding, then such provisions will be decreased, performed to the maximum time or other limitations prescribed by applicable law, the parties acknowledging their desire that in such event such action be taken.
33. Waiver. Neither party shall be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party.  No waiver by either party of any provision hereof shall constitute a waiver of such provision on any other occasion.  CUSTOMER specifically agrees that it has not relied upon and its purchase of subscriptions is not contingent upon the future availability of any software, products, services, programs, modifications, enhancements or updates in entering into the payment obligations in this Agreement.  
34. Survival.  Any provision which by its terms ought to continue after termination of this Agreement including, by way of example and not of limitation, confidentiality, ownership, warranty disclaimer, indemnification and limitation of liability, shall survive termination of this Agreement, irrespective of the reason for the termination. 
35. No Legal Advice.  KMK shall not provide CUSTOMER with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which CUSTOMER uses the Software, including those related to data privacy, or medical, pharmaceutical or health related data.  CUSTOMER acknowledges that the Software may be used in ways that do and do not comply with such laws, rules or regulations and it is CUSTOMER’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. CUSTOMER acknowledges and agrees that not all features, functions and capabilities of the Software may be used in all jurisdictions, and CUSTOMER recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law.  CUSTOMER is responsible for such CUSTOMER-specific use decisions and KMK disclaims all liability for such decisions.
36. Export Control Laws.  Each party shall comply with the export control laws of the United States which are applicable to the Software, and which may prohibit use of the Software in certain sanctioned or embargoed countries.

 

18. Headings.  Headings of the sections of this Agreement are for reference purpose only and do not constitute terms or conditions of this Agreement, nor shall they limit or affect the terms and conditions hereof.
19. Negotiated Agreement.  The parties acknowledge that this Agreement was a fully negotiated agreement and reviewed by their respective counsel.  No one party is considered the draftsman, and accordingly, no provision contained herein should be construed against any one party because it was the draftsman. 
20. Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized officers as of the date set forth above. 

 

[INSERT NAME OF CUSTOMER] KMK CONSULTING, INC. 

 

 

By: By:  
Michael Karbachinskiy, President 

Name:____________________________   

 

Title:_____________________________  Date:_____________________________ 

 

Date:_____________________________