Professional Services Addendum

This Professional Services Addendum (“Addendum“) is an addendum to the Master Services Agreement (“Agreement”) between Kyndi, Inc. and the Customer identified in the Order Form (“Customer”). Customer has entered into the Agreement for the provision of the Services (as defined therein).  Now Customer desires to additionally procure, and Kyndi desires to render, certain professional, educational, operational and/or technical services in connection with the Services pursuant to the terms and conditions herein. Capitalized terms used in this Addendum shall have the meaning defined under the Agreement.  The terms and conditions of this Addendum are hereby incorporated by reference into the Agreement.  In the event of conflict between this Addendum and the Agreement, the terms and conditions of this Addendum shall prevail with respect to the subject matter herein.  The terms in the Statements of Work related to the actual rates to be charged and the days and description of the Professional Services to be performed thereunder shall control as to the engagement described in that Statement of Work, but conflicting or additional legal terms may only be made effective by amendment to this Addendum even if they are to apply only to one Statement of Work.

 

  1. Scope of Services. Subject to the terms and conditions of the Agreement and this Addendum, Kyndi will provide Customer with Professional Services as set forth in the applicable statements of work mutually executed by Kyndi and Customer (each, a “Statement of Work” or “SOW”). Kyndi and Customer shall, from time to time, execute Statements of Work that specify the professional services to be provided to Customer hereunder (the “Professional Services”).  Each Statement of Work will include, at a minimum: (a) a description of the Professional Services and any work product or other deliverables and/or training materials to be developed and/or provided to Customer (each, a “Deliverable”); (b) the scope of Professional Services; and (c) the fees and payment terms for such Professional Services, if not elsewhere specified.  All Statements of Work shall be deemed part of and subject to this Addendum.

 

  1. Change Management Process. In the event that Customer or Kyndi request a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within forty-eight (48) hours of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. Kyndi will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until both parties execute them. Executed Change Orders shall be deemed part of, and subject to, this Addendum. In the event that the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.

 

  1. Project Materials.

3.1  Deliverables.  Kyndi shall own all rights, title and interest in and to the Deliverables (excluding any Customer Property as defined in Section 3.3 below), and related intellectual property rights. Subject to terms and conditions of the Agreement and this Addendum, and during the Term, Kyndi hereby provides Customer with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service.

3.2  Tools. Notwithstanding any other provision of this Addendum: (a) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Kyndi to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (b) the term “Deliverables” shall not include the Tools.

3.3  Customer Property.  Customer shall own all rights, title and interest in and to any Customer Property. “Customer Property” means any technology, Customer-specific business processes, or deliverables, specifically as such materials are designated as customer-owned property in a Statement of Work. Kyndi shall have the right to use any such Customer Property solely for the purpose of providing the Professional Services to Customer hereunder.

 

  1. Professional Services Warranty.

4.1 Warranty. Kyndi warrants that: (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with this SOW; and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards, laws and governmental regulations applicable to the performance of such services. Kyndi’s ability to successfully perform hereunder is dependent upon Customer’s provision of timely information, access to resources, and participation.  If through no fault or delay of Customer the Professional Services do not conform to the foregoing warranty, and Customer notifies Kyndi within thirty (30) days of Kyndi’s delivery of the Professional Services, Customer’s sole and exclusive remedy is to have Kyndi re-perform the non-conforming portions of the Professional Services.

4.2  Disclaimer. THE WARRANTIES STATED IN SECTION 4.1 ABOVE ARE THE SOLE REMEDIES FOR CUSTOMER AND EXCLUSIVE OBLIGATIONS OF KYNDI RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO CUSTOMER PURSUANT TO THIS ADDENDUM AND ANY STATEMENT OF WORK. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.  EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES AND DELIVERABLES PROVIDED TO CUSTOMER ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS.

 

  1. Limitations of Liability for Professional Services. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, TORT, STATUTORY DUTY OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH A SOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ADDENDUM, THE APPLICABLE SOW OR THE AGREEMENT, THE MAXIMUM LIABILITY OF KYNDI ARISING OUT OF OR IN THE CONNECTION WITH ANY PROFESSIONAL SERVICES OR DELIVERABLES SHALL BE THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW FOR THE PROFESSIONAL SERVICES.  THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS ADDENDUM AND ANY STATEMENT OF WORK. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE PROFESSIONAL SERVICES AND THAT, WERE KYNDI TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER. NOTHING IN THIS AGREEMENT EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.

 

  1. Term. This Addendum shall be effective upon execution of the first SOW and shall continue in effect during the Term of the Agreement.  Each SOW shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW. Sections 4.2 and 5 through 10 shall survive termination of this Addendum.

 

  1. Independent Contractor. Kyndi’s relationship with Customer pursuant to this Addendum will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other.  Nothing in this Addendum shall be deemed to create any agency, partnership or joint venture relationship between the parties.  Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Addendum. Kyndi reserves the right to use third parties (who are under a covenant of confidentiality with Kyndi), including, but not limited to, offshore subcontractors to assist with the Professional Services, including, without limitation, any data migration, configuration, implementation and custom code development processes.

 

  1. Non-Impediment. Provided that Kyndi does not use any Customer Property except as permitted herein, nothing in this Addendum shall be construed as precluding or limiting in any way the right of Kyndi to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or competitive with the Professional Services and/or Deliverables hereunder).

 

  1. Non-Solicitation/Non-Hire. Customer agrees that, during the Term, it will not directly or indirectly solicit, induce or attempt to induce, employ or engage the services of any of the employees and/or contractors of Kyndi who were involved in providing Professional Services under or relating to this Agreement to leave Kyndi without prior written permission of Kyndi other than: (a) by general solicitations, such as advertising, not specifically targeted at such employees or contractors; or (b) if such employee or contractor originally approached Customer.

 

  1. Entire Addendum. This Addendum, together with the executed SOWs and the Agreement, constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Addendum and the Professional Services. The parties expressly disclaim any reliance on any and all prior agreements, understandings, RFPs, verbal and/or written communications related to the Professional Services to be provided by Kyndi. No other act, document, usage or custom shall be deemed to amend or modify this Addendum unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, this Addendum shall control.