Web Site Development Web Site Hosting Search Engine Optimization Services South Shore Cape Cod Boston MA

This Agreement constitutes the terms and conditions under which KHM Corporation d/b/a KHM Internet (“KHM”) provides consulting services and tools. All quotations, proposals and statements of works written by KHM are bound by this document.

KHM shall perform the consulting and other services and/or development and preparation of materials specifically set forth in the proposal(s) (the “Services”). Each proposal sets forth the scope of the applicable Services, any required deliverables, the timing contemplated for performance of the Services, and the amount that the Client agrees to pay KHM therefor, with a payment schedule and any applicable milestones for payment. The deliverable of the Services is referred to in this Agreement as the “Solution.”

Additional Services may be included under this Agreement by the parties’ execution of a new or amended proposal, in accordance with the Change Control procedure detailed in the proposal.

1. Performance of Services. KHM will perform the Services with reasonable skill and care in a workmanlike and professional manner through employees or independent contractors having a level of skill commensurate with the requirements of the proposal. Subject to the provisions of the proposal, KHM alone shall determine the method, details, and means of performing the Services, but it will make reasonable endeavors to comply with any reasonable requests or directions of the Client. KHM personnel will at all times observe the Client’s reasonable work practices and security and safety policies when on the Client’s premises.

2. Facilities. Subject to any additional requirements specified in the proposal.
(a) KHM personnel will perform their work for the Client virtually, at the Client’s premises or at KHM’s premises on an as-needed basis, and

(b) When KHM personnel are working on the Client’s premises the Client shall provide at their cost working space and facilities as needed, and any other services and materials that KHM or its personnel may reasonably request in order to perform the Services.

3. Independent Contractor. KHM shall be acting as an independent contractor and shall not be considered to be, or represent itself as, an agent, employee, joint venturer or partner of the Client. Except to the extent contemplated by the proposal, KHM shall have no authority to contract for or bind the Client in any manner. KHM shall have sole responsibility for payment of compensation to its personnel, for payment of all federal, state and local taxes or contributions imposed on or required of KHM in connection with its personnel under unemployment insurance, social security and income tax laws, for filing all required tax forms in connection therewith, and for obtaining necessary workers compensation coverage.

4. KHM Personnel. KHM does not commit to assign any particular person to provide or supervise the Services except to the extent set forth in the proposal and, in that case, KHM reserves the right to replace any such person if s/he becomes unavailable. KHM shall at the Client’s request remove from the Client’s premises any KHM personnel that the Client reasonably judges to be unsuitable or unable to perform the Services.

5. Payment Terms. The Client shall pay KHM the fees specified in the proposal, subject to achievement of any milestones or deliverables to the extent required by the proposal. In addition, the Client shall pay KHM its actual out-of-pocket expenses as reasonably incurred by KHM and its personnel in connection with its performance of the Services. Unless otherwise specified in the proposal, the Client shall pay KHM’s invoices for fees and expense reimbursement upon receipt. All such invoices shall be in sufficient detail to permit the Client to determine the nature of the services and expenses for which compensation or reimbursement is sought. The Client shall be responsible to pay all federal, state, and local sales and/or use taxes, penalties and late charges (collectively “Client Taxes”) imposed by any taxing authority on Client as a result of the transactions contemplated hereby. To the extent that KHM is required to collect and remit any Client Tax, KHM shall invoice Client the amount of any such tax as a separate line item.

6. Confidentiality and Use of Information. The Client shall use commercially reasonable efforts to keep confidential and not disclose to any third party any trade secrets or other confidential or proprietary information of KHM, including without limitation any materials or information received by the Client concerning KHM’s proprietary methods and techniques, and shall not use the same for any purpose. KHM shall use commercially reasonable efforts to keep confidential and not disclose to any third party any trade secrets or other confidential or proprietary information of the Client that is obtained from the Client or results from this engagement (except information or data that (i) at the time of disclosure, is already in the receiving party’s possession or is in the public domain, (ii) after disclosure to the receiving party, enters the public domain except as a result of a breach of this obligation by the receiving party, or (iii) is required to be disclosed by applicable law or binding legal process, including as necessary to protect the receiving party’s interest in this Agreement), and the receiving party shall not use the same except as permitted by, or required in performing, this Agreement or as approved by the disclosing party. The parties shall keep this Agreement and the terms hereof confidential and shall not disclose them to any third party, other than to such of their professional advisors as they reasonably consider necessary, and except to the extent such disclosure may be required by applicable law or binding legal process. If either party is obligated by law, or receives any legal process requiring it, to produce any information or materials covered by this section, it shall notify the other party promptly and prior to compliance with such law or legal process. The provisions of this Section 6 shall continue to apply until the third anniversary of the termination of this Agreement.

7. Rights in the Solution and Intellectual Property. (a) Ownership of the Solution. Except as otherwise set forth below in this Section 7, the Solution will remain the property and responsibility of KHM. Upon completion of the initial one (1) year OnDemand agreement, KHM automatically assigns to the Client the ownership of such works, including copyright interests and any other intellectual property therein, without the necessity of any further consideration. Notwithstanding other provisions of this Section 7, Client acknowledges that KHM shall be free to use and disclose any technologies, ideas, concepts, know-how, methods, techniques, processes and skills developed or acquired by KHM in the course of providing the Services including without limitation for developing other solutions for itself or others.

(b) Preexisting Works of KHM. Notwithstanding anything to the contrary contained in this Section 7, KHM hereby reserves and retains ownership of all right, title, and interest, including copyright interests and any other intellectual property, in and to all technologies, ideas, concepts, know-how, methods, techniques, and processes that KHM has created or acquired before entering into this Agreement, or which KHM creates or acquires independently of this engagement (“Pre-Existing Works”), including without limitation tools owned by KHM. If and to the extent such Pre-Existing Works are incorporated into the Solution, the Client shall have the nonexclusive right to use such Pre-Existing Works and to modify and make additional copies of them in machine-readable form as part of its use of the Solution. KHM shall also make available the source code version of such Pre-Existing Works, as reasonably requested by the Client, for support and maintenance purposes only. Client acknowledges that the source code versions of such Pre-Existing Works, and any modifications thereto are to be used for the Client’s internal purposes only and shall not be distributed, licensed or made available to third parties.

(c) Third-Party Interests. Notwithstanding Sections 7(a) and 7(b), the Client’s interest in and obligations with respect to any programming, software, materials, or data to be obtained from third-party vendors, regardless of whether provided through or obtained with the assistance of KHM, shall be determined in accordance with the agreements and policies of such vendors.

(d) Payment Required. The rights provided to the Client under Sections 7(a) and 7(b) shall arise only upon full payment of all amounts due KHM under this Agreement. Until that time, the Client shall have only a license to use such works to the extent specified by KHM from time to time, which license shall be revocable by KHM at any time.

8. Warranties. In addition to the warranties, if any, contained in the attached proposals,

(a) Performance of the Services. KHM warrants to the Client that the Services will be performed with all reasonable skill and care in a workmanlike and professional manner in compliance with industry standards.

(b) Right and Authority. KHM and the Client each represents and warrants to the other that it has (i) sufficient right, title, and interest in and with respect to any programs, systems, data, and materials to be furnished to the other party or used in the performance of this Agreement and (ii) all such other licenses, approvals, power and authority, as may be necessary to perform this Agreement.

9. Intellectual Property; Indemnification. (a) Defense of Infringement Claims. The provisions of this Section 9(a) shall apply in the event that any claim of infringement of any patent, copyright, trade secret or similar proprietary or intellectual property right of any third party is made by any party (i) against the Client with respect to the Solution or any software or other component thereof provided by or on behalf of KHM to the Client under this Agreement or (ii) against KHM with respect to any software, documentation, data or other property provided to KHM by or on behalf of the Client in connection with this Agreement. In such event, the party who provided the infringing or allegedly infringing intellectual property or on whose behalf the infringing or allegedly infringing intellectual property was provided (the “Indemnifying Party”), will defend the other party (the “Indemnified Party”) at the Indemnifying Party’s expense and hold it harmless from and against all and any such claims or proceedings, liability, loss, damages, costs (including legal costs), professional and other expenses of any nature whatsoever incurred as a result of or arising out of any such claims or proceedings,, and will pay any settlements or judgments ultimately awarded against the Indemnified Party as a result of such claim or proceedings, provided that: (A) the Indemnifying Party is notified in writing promptly after the Indemnified Party receives notice of such a claim and in any event no later than twelve (12) months after the termination of Services under the respective proposal; (B) the Indemnifying Party is permitted to exercise sole control over the defense of the claim and all related settlement negotiations; and (C) the Indemnified Party provides to the Indemnifying Party, at the Indemnifying Party’s expense, all reasonably necessary assistance, information and authority to perform the above. Neither party will be obligated to indemnify the other (i) if the other party is in material default under this Agreement when a claim is made or while the claim is pending, or (ii) to the extent the claim is based on the combination, operation or use of the software or other material supplied by the Indemnifying Party with software or material not supplied or specified by the Indemnifying Party or (iii) to the extent the claim is based on the use of the software or other material supplied by the Indemnifying Party in an unlawful manner.

(b) The Client’s Rights in the Event of Infringement Claims. In the event that any claim of infringement against the Client with respect to any software, documentation, data or other property provided by KHM of which KHM receives timely notice under Section 9(a) is, or in KHM’s judgment is likely to be, substantiated, KHM will use commercially reasonable efforts, at its expense and at its sole discretion, either to: (i) obtain a license from the third party for the Client to continue using the infringing software or other property; or (ii) modify or replace the infringing software or other property to avoid such infringement without materially diminishing the functional capabilities of the Solution.

10. Limitation of Warranty and Liability. Provided that neither party excludes or limits its liability for death or personal injury caused by its negligence or the negligence of its employees or agents:

(a) THE LIMITED WARRANTIES SET FORTH IN SECTION 8 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO KHM’S PERFORMANCE OF THE SERVICES, THE DELIVERY OF THE SOLUTION, AND ANY OTHER MATERIALS FURNISHED TO THE CLIENT HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

(b) The indemnification and other remedies set forth in Section 9 above constitute each party’s exclusive remedies against the other party in the event of an infringement or claim of infringement of the proprietary rights of any third party.

(c) Except as otherwise provided in Sections 9 or 11, neither party’s liability for any claim arising under this Agreement, including the Exhibits hereto and any other documents incorporated by reference herein, or otherwise arising from the performance or nonperformance of the Services, regardless of the form of action (including, but not limited to, actions for breach of contract, negligence, strict liability, rescission, and breach of warranty) will exceed the lesser of (i) the total fees paid (and due in the case of the Client’s liability) to KHM hereunder or (ii) the actual damages sustained by the other party. IN ANY EVENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Non-Interference with Employees. Each party acknowledges that the employees of KHM and the Client constitute a highly trained, unique and valuable component necessary to the conduct of the other party’s business. Accordingly, each party agrees that, during the term of this Agreement and for a period of one (1) year thereafter, it shall not, without the express prior written consent of the other party, directly or indirectly, solicit for employment, hire, employ or retain (as an employee, independent contractor, consultant, subcontractor or otherwise) any person then employed by the other party, or who was employed by the other party during the term of this Agreement.

12. Resolution of Disputes. The parties agree to attempt to settle amicably all disputes arising out of or in connection with this Agreement. The parties agree that any dispute arising under this Agreement that is not settled will be submitted to binding arbitration in the City of Boston, Massachusetts in accordance with the rules and procedures of the American Arbitration Association, before a single arbitrator who will be reasonably familiar with the computer software and e-commerce industries. Judgment upon any award made in such arbitration may be entered and enforced in any court of competent jurisdiction.

Nothing contained herein shall limit or preclude a party from bringing any action in any court of competent jurisdiction for injunctive or other provisional relief to compel the other party to comply with its obligations hereunder before or during the pendency of arbitration proceedings.

13. Term and Termination. (a) Term. This Agreement shall commence on the Effective Date as specified in the proposal and, unless sooner terminated or extended by agreement of the parties, shall continue in effect until completion of the Services.

(b) Termination by Either Party without Cause. OnDemand web site solutions may not be terminated by either party for any reason. In the case of customer service issues, KHM will make commerically reasonable efforts to remedy the situation.

(c) The KHM 60 Day Money Back Guarantee. Client may cancel agreement within 60 days of Effective Date on the Proposal Acceptance document. If this occurs, KHM will refund client's money within 180 days of request and verification of eligibility for refund.

(d) OnDemand Term. Services labelled by KHM as "OnDemand" web site solutions are, by default, delivered for a (1) one year term. After the 60 Day Guarantee period, this agreement may not be terminated for any reason.

(c) Termination by Either Party for Breach. Either party may terminate this Agreement upon written notice if the other party has: (i) breached any of its obligations hereunder with respect to confidentiality or the protection of proprietary rights and has failed to cure such breach within thirty (30) days after written notice thereof or (ii) breached any other obligation provided hereunder and has failed to cure such breach within sixty (60) days after written notice thereof (but in both cases (i) and (ii) no cure period is required for any breach that cannot be cured); provided that the cure period for any failure of the Client to pay any invoice for fees and expenses due hereunder shall be fifteen (15) days after written notice thereof. In the event of termination of this Agreement in accordance with this clause (c) each party shall promptly return or destroy all confidential information of the other in it’s possession, and return any other property belonging to the other.

(d) Payment Following Termination. The Client shall pay KHM, upon invoice, any fees or expenses accrued but unpaid at the time of termination. To the extent not previously paid, KHM shall be entitled to a pro rata payment for work in progress based on the percentage of work then completed, plus the full amount of payment attributable to programming and materials already furnished by KHM. In those cases in which KHM has been compensated through a percentage share of Client’s revenue, KHM will be entitled to payment of $150 per consultant hour to reconcile the account.

(e) Transition; Survival. In connection with the expiration or termination of this Agreement, KHM will comply with the Client’s reasonable directions to effect the orderly transition of all Services then being performed by KHM or that KHM is then responsible for performing under this Agreement. The Client and its employees and agents will cooperate in good faith with KHM in connection with KHM’s obligations under this subsection. Notwithstanding any termination of this Agreement, Sections 3, 5, 6, 7, 9, 10, 11 12, 13, and 16 hereof shall survive termination in accordance with their terms.

14. Non-exclusivity. The Client acknowledges that KHM and its affiliates comprise a full service organization that may from time to time have consulting and other relationships with other parties in the Client’s field or business pursuant to which KHM may provide services that are the same or similar to the Services hereunder, and that KHM shall have no obligation to disclose any such relationship or the details thereof to the Client.

15. Publicity. The Client consents to use by KHM and marketing agencies representing KHM of the Client’s name in publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between the Client and KHM.

16. General. (a) Insurance. Both parties shall maintain general liability and worker’s compensation insurance during the term hereof and shall provide evidence of such coverage to the other upon request.

(b) Partial Invalidity. If any provision of this Agreement or the application thereof to any party or circumstances is declared void, illegal or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

(c) Waiver of Compliance. Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.

(d) Scope of Agreement; Amendment. The signature page hereof, the proposal(s), these Terms and Conditions, and each other Exhibit to the signature page (i) constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, which supersedes all other agreements, oral and written, heretofore made with respect to the subject matter hereof, and (ii) cannot be altered except by a writing executed by an authorized representative of each party.

(e) Governing Law. This Agreement and its performance shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to principles of conflicts of laws.

(f) Assignment. Except as provided in sub-clause (g) below, this Agreement is not assignable by either party by operation of law or otherwise, except pursuant to a merger of the assigning party with another business entity or the sale of all or substantially all of such assigning party’s assets.

(g) Subcontracting. KHM may appoint such agents or sub-contractors as it sees fit to perform all or any of its obligations under this Agreement.

(h) Force Majeure. Neither party will be responsible for delays resulting from circumstances beyond the control of such party including, but not limited to, any act of God, war, civil disturbance, import or export regulations, strike or trade dispute, difficulties in obtaining workmen or materials, breakdown of machinery, fire or accidents, provided that the nonperforming party uses reasonable commercial efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

(i) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument.

(j) Notices. Notices under this Agreement shall be given to the respective Contact Person of each party as follows:

If to KHM:

President

In writing:
125 Church Street
Unit 90-321
Pembroke, MA 02359

or by telephone at 781.679.9935

or by fax at 781.753.0842

or by email: CLICK HERE

YOUR ACCEPTANCE OF THIS AGREEMENT IS INDICATED BY
MAKING PAYMENT.