Last Modified: 12/09/2025
1. Applicability. These terms and conditions for services (these "Terms") and the accompanying SOW are the only terms that govern the provision of services by KDInfotech, a California corporation ("KDI"), to the client ("Client") listed on the SOW. "SOW" means any statement of work, sales order, purchase order, or the like which both KDI and Client have executed and which contains a reference to these Terms. The Terms and the accompanying SOW (collectively, this "Agreement") together comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the SOW, these Terms will govern, unless the SOW expressly states that the terms and conditions of the SOW will control as to particular terms therein. These Terms prevail over any of Client's general terms and conditions regardless of whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
2. Services. KDI will provide the services to Client as described in the SOW (the "Services") in accordance with these Terms.
3. Performance Dates. KDI will use reasonable efforts to meet any performance dates specified in the SOW, and any such dates will be estimates only.
4. Client's Obligations. Client will: (a) cooperate with KDI in all matters relating to the Services and provide such access to Client's premises, and such office accommodation and other facilities as may reasonably be requested by KDI, for the purposes of performing the Services; (b) respond promptly to any KDI request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for KDI to perform Services in accordance with the requirements of this Agreement; (c) provide such Client materials or information as KDI may request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services; and (e) notify KDI as soon as possible if the Services necessitate that Client and KDI enter into a contract with the terms required by the California Consumer Privacy Act (California Code, Civil Code - CIV § 1798.100 and 11 CCR § 7053).
5. Client's Acts or Omissions. If KDI's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, KDI will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Fees and Expenses; Payment Terms; Interest on Late Payments. In consideration of the provision of the Services by KDI and the rights granted to Client under this Agreement, Client will pay the fees set forth in the SOW. Client will pay all invoiced amounts due to KDI within fifteen (15) days of the date KDI sends the invoice. Client must keep its invoicing address (email, mail, or otherwise) up to date with KDI at all times. In the event payments are not received by KDI within five days after becoming due, KDI may: (i) charge interest on any such unpaid amounts at a rate of one percent (1%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid and (ii) suspend performance for all Services until payment has been made in full.
7. Taxes. Client will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
8. Intellectual Property. Unless otherwise agreed to by the parties in writing, Client will exclusively own all work product created or developed by KDI for Client in performance of the Services (“Work Product”). For avoidance of doubt, “Work Product” does not include: (i) tools, utilities, and other software, in each case that KDI creates or develops for the general use of KDI’s clients or (ii) third-party software, hardware, or other products that KDI is to procure for Client in performance of the Services (such third-party software, hardware, and other products, “Third-Party Assets”). Any Work Product will automatically become the sole property of Client as of the time of such Work Product’s creation and is intended to be a "work-made-for-hire" within the meaning of the United States Copyright Act, 17 U.S.C. §101. To the extent Work Product is not automatically the sole property of Client upon creation, KDI hereby irrevocably transfers, assigns, and conveys to Client all rights, title, interests and materials related to or comprising the Work Product. During the Term and for one year thereafter, KDI will take all actions reasonably requested in writing by Client to further evidence, record and perfect such assignments. To the extent any part of the Services or Work Product cannot be fully exploited without using or violating intellectual property owned by or licensed to KDI (or its personnel) and not assigned hereunder, KDI hereby grants Client and its successors a perpetual, irrevocable, worldwide, royalty-free, non-exclusive right and license to use, modify, distribute and otherwise fully exploit and exercise all such intellectual property in connection with the Work Product (including any derivatives thereof) or otherwise in support of Client’s receipt of the Services.
9. Insurance. Each party will obtain and maintain, at a minimum and each at their own cost, insurance policies that provide adequate coverage for all risks normally insured against by a person carrying on a similar business in a similar location, and for any other risks to which the respective party is normally exposed. Each party agrees to maintain at their own cost workers' compensation insurance (if and as required by state law) to cover all classifications of work contemplated herein.
10. Confidential Information. All non-public, confidential or proprietary information of a party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by one party to the other and marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and will not be disclosed the receiving party without the prior written consent of the disclosing party. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the receiving party at the time of disclosure; or (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party. KDI agrees to use Client’s Confidential Information only to provide the Services.
11. Representation and Warranty. KDI represents and warrants to Client that it will perform the Services using personnel of required skill, experience, and qualifications, in accordance with the terms of the SOW. The KDI will not be liable for a breach of the warranty set forth in the immediately preceding sentence unless Client gives written notice of the defective Services, reasonably described, to KDI within ten (10) days of the time when Client discovers or, if earlier, ought to have discovered that the Services were defective.
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11 ABOVE, KDI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (c) WARRANTY CONCERNING THIRD PARTY PRODUCTS; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
13. Limitation of Liability. IN NO EVENT WILL KDI BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT KDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL KDI'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO KDI FOR SERVICES (OTHER THAN THE PURCHASE OF HARDWARE AND SOFTWARE) PURSUANT TO THE APPLICABLE SOW.
14. Indemnification. Client agrees to defend, indemnify, and hold KDI harmless from and against any and all damages, liabilities, and expenses, including but not limited to reasonable attorney’s fees, resulting from or arising out of third-party claims, actions, and proceedings of every kind arising out of or relating to the Services. Client’s indemnification obligations will survive any expiration or termination of this Agreement.
15. Termination. In addition to any remedies that may be provided under this Agreement, each party may terminate this Agreement with immediate effect upon written notice to the other party, if the other party has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part. Client’s payment obligations of every kind will survive any expiration or termination of this Agreement.
16. Waiver. No waiver by KDI of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by KDI. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Assignment. Neither party will assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and, except as the SOW expressly provides otherwise, neither party will have authority to contract for or bind the other party in any manner whatsoever.
19. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws principles. This Agreement is entered into in Santa Clara County, California, and venue and jurisdiction over any dispute regarding this Agreement lies therein.
20. Dispute Resolution. Any controversy or dispute between any of the parties to this Agreement arising out of any of the terms, provisions, or conditions of this Agreement will be submitted to arbitration in Santa Clara County, California, or another location agreed to in writing by the parties. The arbitration will be heard before a retired judge or an attorney. The arbitration will be conducted through JAMS Services, Inc. (“JAMS Services”). The arbitration will be held before a single arbitrator and will be binding with no right of appeal. The arbitration will be conducted pursuant to the JAMS Services Standard Arbitration Rules. The arbitration will be commenced by filing a demand for arbitration with the administrator of JAMS Services and serving the demand on the opposing party. The responding party may file a response and/or a counterclaim within fifteen (15) calendar days. If no response is filed, all the allegations of the demand will be deemed denied. The parties will select an arbitrator by mutual agreement through JAMS Services within thirty (30) calendar days of the date the demand for arbitration is filed. If the parties are unable to agree on the selection of an arbitrator within such time, the administrator of JAMS Services will select an independent arbitrator.
21. Attorneys’ Fees. Except as prohibited by applicable law, if arbitration, suit or action is instituted to enforce or determine the parties' rights or duties in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, including attorneys’ fees incurred in appellate or bankruptcy proceedings, together with all costs and other expenses reasonably incurred.
22. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") will be in writing and addressed to the parties at the addresses set forth in the SOW or to such other address that may be designated by the receiving party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
23. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Indemnification, Limitation of Liability, Governing Law, Dispute Resolution, Attorneys’ Fees, Notice, and Survival.
25. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
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