Terms of professional services

01. Definitions

(a) Customer Materials: Documentation relating to information technology and any similar materials. Customer Materials also includes data, including all text, sound, software, image or video files that are provided to Kyndryl or its Affiliates by, or on behalf of, Customer and its Affiliates for use within the Kyndryl Cloud Uplift (formerly Skytap) Cloud service (“Customer Data”).

(b) Kyndryl Materials: Any and all of Kyndryl’s Delivery Tools, proprietary materials, information and know-how, developed by Kyndryl and used by Kyndryl in the conduct of its business, including, by way of illustration but not limitation, technical information, plans, designs, templates, processes, methodologies, procedures, tools and software.

(c) Deliverables: Any and all work product or deliverables identified as a Deliverable, to be delivered, created, or produced under or pursuant to the SOW, including, but not limited to, software, discoveries, inventions, data, findings, documents, plans, reports, designs, charts, graphs, procedures, methods, workflow processes, or materials of any kind in the performance of the Professional Services but excluding Kyndryl Materials.

(d) Project: The tasks, deliverables, and associated delivery schedule for implementation of the Kyndryl Cloud Uplift Service for Customer as set forth in the SOW.

(e) Professional Services: All consulting, implementation, training, configuration, testing, development, or other professional services work to be done by Kyndryl for Customer in connection with the Project as further described on the SOW.

(f) SOW(s): One or more documents providing a Project-specific plan for the work and Professional Services to be performed for the Project under the SOW, including a Project scope, the tasks to be performed by Kyndryl, the tasks to be performed by Customer, the Deliverables to be delivered by Kyndryl, assumptions, a schedule according to which the tasks specified in the SOW will be completed, and the fees, payment schedule and anticipated expenses associated with the SOW.

(g) Onsite Visits: All Professional Services will be conducted remotely unless expressly set forth in the SOW. Kyndryl agrees to abide by Customer’s  customary written policies and procedures for all onsite visits as provided in advance to Kyndryl and its personnel. Kyndryl engages vendors to perform criminal background checks on all Kyndryl employees prior to employment; any additional checks Customer requires are in Kyndryl’s sole discretion and will be at the sole cost and expense of Customer.

(h) Other Contracts: Kyndryl may have other contracts covering other specific aspects of its relationship with Customer (“Other Contracts”) that may include without limitation (i) subscription or other terms and conditions for Customer’suse of the Kyndryl Cloud Uplift Cloud Services; or (ii) data protection addendums for privacy and security, safety and control and processing of Personal Data, if applicable or required by law. Any SOW incorporating the TOPS is separate from and in addition to any Other Contracts.

(i) Personal Data: means any information relating to an identified or identifiable natural person that is subject to any applicable data protection or privacy law (e.g., EU GDPR, UK GDPR, CCPA/CPRA).02. Professional services

(a) Kyndryl’s Obligation to Perform the Professional Services. Kyndryl will provide the Professional Services pursuant to the SOW incorporating these TOPS.

(b) Kyndryl’s Obligation to Provide Personnel. All personnel of Kyndryl provided under the SOW (including any subcontractors) will remain under the supervision, management, and control of Kyndryl.

(c) Preparation and Execution of SOW. To the extent that there is any conflict between these TOPS and the incorporating SOW, the terms of the SOW will control. Any changes to scope, assumptions, or obligations must be approved by both Parties using a Change Request described under the SOW.

(d) Non-Exclusive; Independent Development. Kyndryl will not be precluded by this Agreement from providing services or developing work products that are functionally comparable to or compete with, the services rendered, and Deliverables provided hereunder subject to Kyndryl’s obligations of confidentiality and Customer’s proprietary rights, Kyndryl shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned, or retained in the unaided memories of Kyndryl’s personnel in the course of providing any Professional Service, subject to Kyndryl intentionally breaching its obligations of confidentiality to Customer.

(e) Customer’s Obligations.

• (i) Customer Materials. Customer will promptly and timely deliver any Customer Materials required for the Professional Services and any Deliverables. Customer has all rights necessary to, and hereby grants Kyndryl a non-exclusive, non-transferable, royalty-free limited right and license to use, copy, modify and create derivative works of the Client Materials solely in connection with Kyndryl’s performance of the Professional Services.
• (ii) Customer Cooperation and Assistance. Customer will provide reasonable cooperation, information and assistance as agreed in the SOW or as reasonable for Kyndryl to perform the Professional Services. Kyndryl is not responsible for delays in the Project due to Customer’s failure or delay in assisting Kyndryl as required.

02. Professional Services

(a) Kyndryl’s Obligation to Perform the Professional Services. Kyndryl will provide the Professional Services pursuant to the SOW incorporating these TOPS.

(b) Kyndryl’s Obligation to Provide Personnel. All personnel provided by Kyndryl  under the SOW (including any subcontractors) will remain under the supervision, management, and control of Kyndryl.

(c) Preparation and Execution of SOW. To the extent that there is any conflict between these TOPS and the incorporating SOW, the terms of the SOW will control. Any changes to scope, assumptions, or obligations must be approved by both Parties using a Change Request described under the SOW.

(d) Non-Exclusive; Independent Development. Kyndryl will not be precluded by this Agreement from providing services or developing work products that are functionally comparable to or compete with the services rendered and Deliverables provided hereunder, subject to Kyndryl’s obligations of confidentiality and Customer’s proprietary rights. Kyndryl retains an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works of the Deliverables and shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned, or retained in the unaided memories of Kyndryl’s personnel in the course of providing any Professional Service, subject to Kyndryl intentionally breaching its obligations of confidentiality to Customer.

(e) Customer’s Obligations.

• (i) Customer Materials. Customer will promptly and timely deliver any Customer Materials required for the Professional Services and any Deliverables. Customer has all rights necessary to, and hereby grants Kyndryl a non-exclusive, non-transferable, royalty-free limited right and license to use, copy, modify and create derivative works of the Customer Materials solely in connection with Kyndryl’s performance of the Professional Services.

• (ii) Customer Cooperation and Assistance. Customer will provide reasonable cooperation, information and assistance as agreed in the SOW or as reasonable for Kyndryl to perform the Professional Services. Kyndryl is not responsible for delays in the Project due to Customer’s failure or delay in assisting Kyndryl as required.

03. Fees and expenses

(a) Payment. Customer agrees to pay Kyndryl the fees in USD and pursuant to the SOW. Unless otherwise agreed in a SOW, Kyndryl will invoice and Customer will pay (i) fifty percent (50%) of the total fees for the Project upon execution of the SOW, and (ii) the remaining fifty percent (50%) of total fees for the Project upon completion. In the event Customer disputes a portion of an invoice reasonably and in good faith, Customer agrees to fully pay the undisputed portion, and Kyndryl’s acceptance of such partial payment will not waive any of its rights to the remaining balances or be an accord and satisfaction. Further, Customer will, for any disputed amount, (i) provide Kyndryl notice of the dispute promptly after receiving the invoice; (ii) the notice explains Customer’s position in reasonable detail; and (iii) such amounts are not payable by reason of Kyndryl’s failure to perform. A dispute will not exist as to an invoice in its entirety merely because certain amounts on the invoice are disputed and the amounts in dispute may not exceed the equivalent of two month’s fees in the aggregate. 

(b) Expenses. Customer will reimburse Kyndryl for the reasonable and customarily documented out-of-pocket expenses of its personnel incurred or that may need to be incurred in the course of providing the Professional Services. Kyndryl personnel traveling out-of-town will be reimbursed for coach class airfare, auto rental, lodging and reasonable and actual meal expenses. Kyndryl will invoice Customer each month for all reasonable and approved out-of-pocket expenses incurred during the previous month.

(c) Taxes. Unless expressly set forth under a SOW, all fees and rates thereunder are in USD. If owed under an SOW, Customer will pay all fees within 30 days of receipt of an invoice specifying the amounts due. All fees payable under this Agreement are exclusive of sales, use, VAT, customs duties, excise, tariffs and any other similar taxes. Kyndryl remains responsible, however, for any taxes on its net income.

04. Warranties

(a) Customer Warranties. Customer represents and warrants that it has sufficient rights in the Customer Materials to allow Kyndryl to perform the activities contemplated herein, and such Customer Materials do not and will not infringe any third-party copyrights, trademarks, patents, or any other proprietary rights (including misappropriating any trade secrets).

(b) Kyndryl Warranties. Kyndryl represents and warrants the following:

• Kyndryl will perform the Professional Services with reasonable care and skill and provide any Deliverables and Professional Services in accordance with the applicable SOW. If Customer notifies Kyndryl in writing of a breach within fifteen (15) days following the receipt of a Deliverable that it does not conform to the specifications under the SOW, Kyndryl will promptly remedy such non-conformity at Kyndryl’s expense by repairing or replacing the Deliverable, as applicable.

(c) Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT WITH RESPECT TO THE PROJECT, THE PROFESSIONAL SERVICES OR THE DELIVERABLES.

05. Term

Unless terminated in accordance with Section 6(a) below, the term of this Agreement commences on the Effective Date and continues until the later of (a) all Professional Services with Customer under an SOW have been completed; or (b) the termination date agreed in the SOW.

06. Termination

(a) Termination. This Agreement may be terminated for cause: (i) by either Party upon thirty (30) days written notice if the other Party materially breaches any of its obligations under this Agreement, such notice to be effective unless breaching Party cures said breach within the thirty (30) day period; or (ii) immediately by either Party if the other Party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due. Any right to terminate the Agreement without cause will be set forth in the applicable SOW.

(b) Effect of Termination. Upon termination and the payment of all outstanding fees and expenses due by Customer, Kyndryl shall promptly deliver to Customer all materials and information supplied by Customer in connection with the terminated Project, together with all Deliverables or work product in process at the effective date of termination.

07. Confidential information

(a) Confidential Information. During the term of this Agreement, either Party (for purposes of this section, the “Disclosing Party”) may disclose or cause to be disclosed, to the other Party (for purposes of this section, the “Receiving Party”) certain confidential information (“Confidential Information”). Confidential Information may include documents, information or materials related to the Disclosing Party’s or related parties’ respective business affairs and/or procedures, designs, programs, flowcharts, and documentation relating to information technology, whether or not owned by Disclosing Party or any of its related parties, supplied by Disclosing Party marked confidential or which by the nature or type of information or manner of disclosure would reasonably indicate the proprietary or confidential nature thereof, including information related to the Services provided hereunder. Receiving Party agrees to use Confidential Information solely in connection with the Services or as otherwise permitted under this Agreement and not to disclose such Confidential Information to any third party, or make commercial use of such Confidential Information, except as permitted hereunder or as expressly consented to in advance in writing by Disclosing Party in its sole discretion, which consent may be withheld. Except as expressly permitted hereunder, Receiving Party will disclose the Confidential Information only to its employees and permitted contractors, agents and representatives who have reason to know such Confidential Information in the performance of the Services hereunder and who are bound by obligations of confidentiality or written agreement substantially similar to the terms provided under this section.

(b) Exclusions. Confidential Information does not include information which (i) is or becomes publicly known through no wrongful act of the Receiving Party, (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, (iii) is received by Receiving Party from a third party without obligation of confidentiality, or (iv) is independently developed by Receiving Party without reliance upon any of Disclosing Party’s Confidential Information

(c) Return or Destroy Confidential Information. Disclosing Party will have the right to request at any time and from time to time during the term of this Agreement, the return and/or destruction of Confidential Information. Receiving Party will as soon as practical following such request provide Disclosing Party with a certification that the Confidential Information has been returned and/or destroyed pursuant to Disclosing Party’s request.

(d) Legal Order. In the event that Receiving Party is subject to a court order, an order of a governmental or regulatory authority, or a similar process (a “Summons”) compelling disclosure or transfer of any Confidential Information, Receiving Party may disclose Confidential Information to the extent required by such Summons, provided that (i) Receiving Party promptly notifies Disclosing Party if legally permissible, so that Disclosing Party may seek a protective order, (ii) Receiving Party reasonably cooperates with Disclosing Party (at Disclosing Party’s expense) in seeking such protective order, (iii) if Disclosing Party cannot obtain a protective order, Receiving Party discloses only those portions of Confidential Information that in the reasonable opinion of its legal counsel are required to be disclosed, and (iv) all such Confidential Information required to be disclosed will remain subject to the obligations in this Agreement.

(e) Independent Development. Kyndryl will not be restricted in any way under any SOW from providing any services or developing works that are functionally comparable to or compete with any Customer products or services, and Kyndryl shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned in the course of activities hereunder, or retained in the unaided memories of Kyndryl personnel, provided Kyndryl does not intentionally breach any confidentiality obligation to Customer in this Section 7.

08. Privacy

(a) Processing of Personal Data; GDPR. Customer consents to the processing of Personal Data by Kyndryl, and its respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Kyndryl, Customer will obtain all required consents and necessary permissions from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and data protection laws. To the extent Kyndryl is a processor or subprocessor of Personal Data subject to the GDPR, any such processing is subject to the Data Processing Addendum (“DPA,” located at https://www.kyndryl.com/privacy/terms/dpa) and to the extent of any international transfers outside of the EU (or UK as applicable) of any Personal Data Kyndryl processes pursuant to this Agreement and for which Kyndryl is a data processor or data controller, the Standard Contractual Clauses govern the same. Customer may request Kyndryl enter into the relevant Standard Contractual Clauses by submitting a request here: https://www.kyndryl.com/privacy/portal/contact/us-en. Kyndryl is a Service Provider under CCPA and CPRA, and the DPA also explains Kyndryl’s obligations necessary to maintain its status as a Service Provider.

(b) Privacy Statement. The Kyndryl Privacy Statement (https://www.kyndryl.com/privacy ) provides further explanation of rights and Kyndryl’s duties regarding privacy and Personal Data/Information.

09. Limitation of liability 

A. NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ECONOMIC CONSEQUENTIAL DAMAGES, OR LOST PROFITS, BUSINESS VALUE, REVENUES, GOODWILL, OR ANTICIPATED SAVINGS OR BUSINESS INTERRUPTION OR LOSS OR CORRUPTION OF DATA OR BUSINESS INFORMATION, EVEN IF THE PARTY HAD BEEN ADVISED OR KNEW OF THE POSSIBILITY OF THESE DAMAGES.

B. EXCEPT WITH RESPECT TO I) YOUR PAYMENT OF AMOUNTS OWED TO KYNDRYL;  AND II) EITHER PARTY’S DEFENSE AND INDEMNITY OBLIGATIONS, WHICH SHALL NOT EXCEED THE GREATER OF THREE (3) TIMES THE AMOUNT PAID OR TO BE PAID BY CUSTOMER UNDER THE APPLICABLE SOW OVER THE PRIOR TWO (2) YEARS OR TWO HUNDRED THOUSAND UNITED STATES DOLLARS (USD$200,000.00), EACH PARTY’S LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS CONTRACTUAL, NON-CONTRACTUAL OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID OR PAYABLE BY YOU TO KYNDRYL DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE. THE DISCLAIMER AND EXCLUSIONS CONTAINED IN THIS SECTION DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.

C. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

D. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, NEITHER PARTY LIMITS OR EXCLUDES ITS LIABILITY WITH RESPECT TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

10. Indemnification

(a) Mutual Defense and Indemnification. Each Party (“Indemnifying Party”) will indemnify the other Party and its respective directors, officers and employees, (each an “Indemnified Party”) by (i) defending the Indemnified Party from and against all third party claims, liabilities, damages, losses and expenses (“Claims”) to the extent arising directly out of such Indemnifying Party’s violation of any third parties’ patent or copyright title related to providing or using the Services; and (ii) paying damages finally awarded by a court of competent jurisdiction. The foregoing right to defense and indemnification shall not apply to any Claims against you that would not have occurred but for your (i) modification of the Services; (ii) combination of the Services with any service, Content, third party software applications, or other technology product not provided by Kyndryl; or (iii) your failure to comply with the terms of this Agreement.

(b) Indemnification Procedures. The Indemnified Party will (i) promptly give written notice of the claim to the Indemnifying Party, (ii) give the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party will seek approval from the Indemnified Party where the Indemnified Party must admit liability or pay damages), and (iii) provide to the Indemnifying Party reasonable assistance.

(c) This Section 10 states the Indemnifying party’s sole liability to, and the Indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.

11. Relationship of parties

The Parties are independent contractors without authority to bind each other or to make any representations on behalf of the other Party. The Parties shall not be deemed to be partners or co-venturers.

12. Feedback

If you provide feedback to Kyndryl regarding the Services (“Feedback”), Kyndryl can freely use the Feedback to improve its operations, products and services. Accordingly, you hereby grant to Kyndryl a non-exclusive, fully paid, royalty-free, perpetual and irrevocable license to use the Feedback in any manner and for any purpose.

13. Prohibition against undue influence

Neither Party will use any payment or other benefit to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement, while knowing or having reason to know that any portion will, directly or indirectly, be given, offered or promised to an employee, officer or other person acting in an official capacity for any government or agency or any political party, party official or candidate for political office. The Parties will at all times refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices.

14. Force Majeure

Neither Party will be liable to the other for any delay or failure to perform any non-monetary obligation under this Agreement if the delay or failure is due to circumstances beyond such Party’s reasonable control without limitation, mechanical, electronic or communications failure or degradation. The affected Party will notify the other Party of such event and resume performance as soon as reasonably practicable.

15. Assignability

Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that either Party may assign this Agreement without consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all such Party’s obligations under this Agreement. Kyndryl may assign rights to receive payments. Assignment by Kyndryl in conjunction with the sale of the portion of Kyndryl’s business that includes a Service is not restricted. Kyndryl may share this Agreement and related documents in conjunction with any assignment

16. Notices

Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Kyndryl must be sent to the address stated in the SOW. Notices to Customer will be sent to the individual at the address Customer identifies in the SOW. Kyndryl may send notices and other information to Customer by email or other electronic form. Notices to Kyndryl by email will be transmitted to [email protected].

17. General

(a) Governing Law; Jurisdiction. For US-based Customers, this Agreement is governed by the laws of the State of New York. For non-US-based Customers, this Agreement is governed by the laws of the country in which Customer resides unless otherwise mutually agreed upon by the parties. The parties acknowledge that this Agreement was drafted under the laws of New York. For purposes of adopting its terms for contracting between the local parties, the mandatory provisions required by local law of contracts between local entities will be deemed to apply, but only as and to the extent required by law.

(b) Dispute Resolution. Subject to Section 3(a) regarding disputed invoice amounts, before initiating any legal action or any formal method of dispute resolution relating to a dispute in connection with this Agreement, the Parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. Either Party may request that each Party designate an officer or other management employee with settlement authority to meet to resolve the dispute or claim. If the dispute is not resolved within thirty (30) days from the commencement of efforts under this subsection, either Party may pursue formal dispute resolution or legal action. This subsection will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.

18. Waiver

The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future.

19. No third-party beneficiaries

Nothing in this Agreement shall be deemed or construed to create any third-party beneficiaries or otherwise give any third party any claim or right of action against any Party to this Agreement.

20. Entire agreement, amendments and counterparts

This Agreement constitutes the full and complete understanding and agreement of the Parties relating to the subject matter hereof and supersedes all prior understandings and agreements relating to such subject matter. Any waiver, modification, or amendment of any provision of this Agreement shall be effective only if in writing and signed by the Parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be original and all of which shall constitute the same instrument.

21. Severability

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Professional Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Professional Services will immediately terminate.

22. Survival

The terms of this Agreement, including the applicable SOW, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement including the applicable SOW, will survive termination or expiration, including all indemnity obligations and procedures.

23. Subcontractors

Kyndryl may utilize one or more subcontractors or other third parties to perform its duties under this Agreement as long as Kyndryl remains responsible for all of its obligations under this Agreement.