PERCONA TECHNICAL SUPPORT & CONSULTING CONTRACT
This Technical Support and Consulting Contract (the “Contract”) is made as of this day via the click assent given to this contract online, between the person or entity completing Percona's online order form at http://www.percona.com/cc-emergency/ (the “Customer”) and the entity (“Percona”) at Percona, Inc., 2300 Benson Rd S #B5, Renton, Washington 98055, USA.
1.1. Engagement of Services. From time to time during the term of this Contract, Customer may request services from Percona in accord with the procedures established by Percona. Subject to the terms of this Contract, Percona will use its good faith, commercially reasonable efforts to perform the services in a timely and professional manner. Percona will choose one or more of its employees, independent contractors, or partners (collectively, “Consultants”). Customer will make its facilities and equipment available to Percona, including via remote internet access, when necessary.
1.2. Nature of Services. Services may be for technical support, consulting, architecture and design, DBA tasks, performance optimization, systems administration, or anything else needed in Customer's computing environment, as directed by the Customer from time to time.
1.3. Rates. Customer will pay Percona a fee for Services rendered under this Contract according to the hourly rates and terms set forth in the Work Assignment that is attached to this contract, and is incorporated into it by reference.
2.1. What Is Billable Time. All work of whatever nature done by a Consultant for the direct benefit of the Customer constitutes billable time. Such work includes, without limitation, orientation to the Сustomer's problems and environment, establishing logins, monitoring, research, experimentation, consultations with other persons, composing emails, editing documentation, and drafting reports.
2.2. Billable Units. Billable time shall accrue as determined by Percona's current published policies as regards minimum increment of billable time and rounding of billable time. A two hour minimum charge applies to all Emergency Tasks, Data Recovery Tasks, and any other task so identified on http://www.percona.com/prices/per-hour-prices.
2.3. Notice of Rates. Notice of Rates. Rates and fees are described in the Work Assignment attached to this Contract. Generally, Standard Rates will apply, except in the case of emergencies (as defined in the “Emergencies” section of this Contract) and other non-standard cases described in the Work Assignment.
2.4. Reports on Billable Time. Percona shall submit periodic reports ("timesheets") of actual time spent performing services. These reports shall itemize in reasonable detail dates, number of hours spent, and a brief description of services rendered.
3.1. Advance Scheduling. All non-emergency tasks are required to be scheduled with Percona at least three full business days in advance (72 business hours). Tasks are accepted on a first come, first served basis. Percona reserves to itself all final decisions on Consultant work schedules. Percona's scheduling policies are further explained at http://www.percona.com/about-us/procedures/scheduling-work
4.1. Emergencies Defined. Emergencies are any request for work which has not been pre-scheduled with Percona at least three full business days in advance (72 hours) in advance. Percona will use its good faith, commercially reasonable effort when helping with emergencies.
4.2. Reporting Emergencies. Percona on-call Consultants can be reached 24x7 by phone for Customer's unscheduled emergency requests for help. Emergency requests are accepted only by telephone call or via Skype, GTalk, or AIM as explained at http://www.percona.com/contact/24x7-emergency Percona's procedures are designed to enable Customer to engage a Consultant within 30 minutes or less.
5.1. Late Payments. Any payment not made when due shall accrue late payment fees in the amount of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due; late fees shall not constitute an election of, or Percona's exclusive, remedy. Late payment shall entitle Percona to terminate this Contract for cause, immediately. Customer agrees to pay any and all legal fees, collection fees or other expenses incurred by Percona due to Customer's failure to pay any amounts due.
5.2. Taxes. All rates in Work Assignments are exclusive of local, state, federal and international sale, value added, excise and other taxes and duties of any kind. Customer agrees to pay any and all taxes and duties arising out of or in connection with this Contract, other than taxes levied or imposed based upon Percona’s net income. If Customer is required to withhold an amount for taxes before remitting payment to Percona, Percona may gross up its rates and the amount due in an original or amended invoice to ensure that the net amount actually received by Percona equals the gross amount due.
5.3. Unpaid Work. If any fees or expenses required to be paid in advance are not made, Percona reserves the right to immediately suspend or discontinue any or all services to Customer until payment has been received, regardless of the technical circumstances of the Customer at the time.
5.4. Disputed Billings. Any Customer claims, including (without limitation) disputes in connection with billings, work performance or similar concerns, must be presented to Percona in writing no later than 90 days after the applicable invoice date or the date the applicable work was performed by Percona, whichever is later. Failure to timely present a claim in accordance with this section shall constitute a waiver of that claim.
6.1. Work Assignments. Work Assignments define the type of billing structure and specific hourly rates applicable to work done. The initial Work Assignment is attached to this Contract and is incorporated into it by reference. Additional or replacement Work Assignments may be executed in writing and signed by authorized representatives of both parties. There must always exist at least one Work Assignment per contract.
6.2. Termination. Either party may terminate this Contract at any time, with or without cause, upon fifteen (15) days' prior written notice to the other. Percona shall be paid in full for all Services rendered and reimbuseable expenses incurred prior to the effective date of termination or expiration. If at the initiative of Percona this Contract is terminated before expiration, any amounts pre-paid for unused hours shall be refunded to the Customer.
6.3. Survival. The rights and obligations contained in the Sections titled ”Non Solicitation“, ”License — New Software Works“, ”License — Modified & Pre-Existing Works“, ”Restrictions/Obligations“, ”Limitation of Liability“ and ”General Contractual Conditions“ will survive any termination or expiration of this Contract.
6.4. Independent Contractor Relationship. The parties are independent contractors. Nothing in this Contract should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Customer and Percona or its Consultant(s). Percona is not the agent of Customer or vice versa; neither party is authorized to make any representation or commitment on behalf of the other. Neither party is or will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits.
6.5. Work by Subcontractor Partners of Percona. Percona may utilize selected third-party subcontractor partners of Percona for specialized technical services, if needed, when approved by the Customer. Rates are to be the same as provided under this contract for work done directly by Percona. Percona will handle all administration and billing. Percona shall be liable for all acts, omissions, or work performed by the partner to the same extent as if the work had been performed by Percona itself under this Contract.
6.6. Non Solicitation. Without the other party's express written consent, neither party shall, during the Term and for one (1) year after its expiration or termination, solicit for hire, as an employee or independent contractor, any of the other party's employees, contractors or subcontractors. In the event of hiring without the other party's consent, the hiring party agrees to pay the other Seventy-five Thousand U.S. dollars. The parties agree that the foregoing is a reasonable, liquidated amount, and not a penalty. Notwithstanding the foregoing, nothing in this Contract shall prevent either party from hiring any person who responds to a general solicitation not personally directed to him.
6.7. Acceptance As Customer. Percona may decline to accept as a customer, at its sole discretion, any party which it believes is engaged in unlawful activities, or which may conflict with its prior customer relationships,or which it determines is otherwise incompatible with Percona's businesss. Percona declines to accept as a customer any company which is “adult industry” or pornographic in nature, or assist with projects of this type.
6.8. Use of the Customer as a Reference. During the term of this Contract, the Customer agrees that Percona may use the Customer in good faith as a reference in marketing materials, web sites, discussions, case studies and white papers. After termination or expiration of this Contract, Percona’s use of the Customer as a reference may continue indefinitely unless Percona is notified otherwise in writing.
6.9. No Endorsement of Customer. The Customer may not claim or otherwise state that Percona or any of its employees or contractors have endorsed Customer’s technology, products, services or business endeavors without prior written permission in writing from the CEO or COO of Percona; such permission shall be in the sole and absolute discretion of Percona.
7.1. License — New Software Works. Subject to payment hereunder, all wholly original software programs or products conceived, written, or created for the Customer by Percona in the performance of the Services that do not constitute or include derivative or collective works, customizations, enhancements or new modules or components of existing software or applications (the “Assigned Work Product”) shall be the sole and exclusive property of the Customer, and all right, title and interest to such Assigned Work Product shall be assigned to Customer. To the extent allowable under applicable law, Assigned Work Product shall constitute a “work made for hire” under copyright law. If ownership is not able to be vested with the Customer for any reason, Percona hereby grants to Customer a nonexclusive, royalty free, worldwide, perpetual license to use the Work Product and to copy, modify, translate, reverse engineer, decompile, disassemble, create derivative works of and use the Work Product to build any product.
7.2. License — Modified & Pre-Existing Works. Subject to payment hereunder, for all software programs or products that constitute or include derivative or collective works, customizations, enhancements or new modules or components of existing software or applications created by Percona, including (without limitation) existing open source tools or utilities and any pre-existing works of Percona, (the “Licensed Work Product”), Percona grants to Customer a limited, non-exclusive, royalty-free, worldwide license during and after the term to reproduce, modify, distribute, transmit, perform, display and otherwise use such Licensed Work Product (the “Percona License”). Notwithstanding the foregoing, to the extent that any Licensed Work Product is based on, derived from or otherwise subject to a third-party work or license, or any open source license, or constitutes a customization, enhancement or new module or component for software available under any open source license, such Licensed Work Product shall be subject to, and is hereby licensed to Customer pursuant to, the terms and conditions of the license that applies to such pre-existing work, even if that license is more restrictive than the Percona License; Customer agrees to consent to and comply with those license terms and conditions at all times. For example, if Percona has been engaged to fix bugs or otherwise modify or create derivatives of code that is part of the LAMP stack (i.e., Linux, Apache, MySQL, PHP) and licensed pursuant to a version of the GPL license, such bug fixes or other modifications shall be subject to the applicable version of the GPL license, not the Percona License.
8.1. Definition. “Confidential Information” is any information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the Services, and clearly marked as confidential or identified in writing to the Receiving Party as confidential at the time of disclosure.
8.2. Restrictions/Obligations. The Receiving Party shall: (a) only disclose the other party's Confidential Information to employees or contractors with a need to know or who have access to Percona's internal web-based systems and tools; (b) not disclose Confidential Information to any third party without Disclosing Party's prior consent; and (c) not use or reproduce Confidential Information except as required to accomplish the purpose discussed. However, the Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order. Customer acknowledges that Percona will store Confidential Information from Customer on Percona's secure internal Wiki, Eventum, and other computer servers, which may be physically located in multiple nations, and that Contractors may be from multiple nations of citizenship and residence. The provisions of this Section shall survive for one (1) year after expiration or termination of the Contract.
8.3. Exclusions. The terms of Section titled ”Restrictions/Obligations“ shall not be construed to limit either party's right to independently develop or acquire products or services without use of the other party's Confidential Information. The Disclosing Party acknowledges that the Receiving Party may currently, or in the future, be developing information internally, or receiving information from other parties, that is similar to the Confidential Information, and/or working with a competitor of the other party; either Receiving Party is free to do so, provided that it maintains the confidentiality of the Confidential Information of the Disclosing Party.
8.4. Ownership. All Confidential Information shall remain the property of the Disclosing Party and shall be returned (or, at the Disclosing Party's option, destroyed) within ten (10) business days upon written request. However, the parties acknowledge that copies of Confidential Information deleted from a Receiving Party's systems may remain in a backup file until such system is overwritten. Except to the extent of the copyright license described in Sections under the header Software Ownership & Licenses, no rights or licenses to trademarks, inventions, copyrights or patents are implied or granted under this Contract.
9.1. Data Backup. Customer acknowledges that it is Customer's sole responsibility at all times, including specifically during all Services performed by Percona, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems of Customer.
9.3. Limitation of Liability. Except with respect to the Section entitled “Authority to Perform and Engage”, neither party will be liable for special, incidental, indirect, exemplary or consequential damages or lost profits arising out of or in connection with this Contract (however arising, including negligence, and damages resulting from impaired or lost data, software or computer failure or any other cause), even if it has been advised of the possibility of such damages. To the extent permitted by applicable law and notwithstanding any other provision of this Contract, except in the event of a willful breach of Sections under the header “Mutual Non-Disclosure”, or a breach of the Section entitled “Authority to Perform and Engage”, in no event will either party be liable to the other party in an amount greater than the amounts paid or payable by Customer to Percona hereunder during the most recent twelve-month period. This limitation of each party's liability is cumulative, with all payments for claims or damages in connection with this Contract being aggregated to determine satisfaction of the limit. The existence of one or more claims will not enlarge the limit. Both parties understand and agree that the remedies and limitations herein allocate the risks between the parties as authorized by applicable laws. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential and other damages set forth in this Contract.
9.4. Representations and Warranties. Percona represents and warrants that all Services will be performed in a timely, professional and workmanlike manner. Except as expressly set forth in this section (titled ”Representations and warranties“), to the extent permitted by applicable law, Percona makes no warranties whatsoever in connection with the services or any work product provided under or in connection with this Contract, and Percona expressly disclaims, and Customer expressly waives, all warranties, whether express or implied, including (without limitation) warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, and accuracy of informational content.
10.1. Successors and Assigns. This Contract may not be assigned by either party without the other party's consent, and any such attempted assignment shall be void and of no effect. However, either party may assign this Contract to the successor-in-interest of a merger, acquisition or sale of substantially all of the party's assets, provided that the assigning party provides written notice thereof to the other party within thirty (30) days after the effective date of such assignment. Subject to the foregoing, this Contract will be for the benefit of each party's successors and assigns, and will be binding on each party's assignees.
10.2. Notices. All breach-related notices permitted or required under this Contract shall be in writing and shall be delivered by recognized postal or courier services who provide delivery confirmation. All other notices may be sent by email with notice deemed given upon acknowledgement of receipt by a reply email.
10.3. Governing Law. This Contract shall be governed in all respects by the laws of the United States of America and by the laws of the State of Delaware as such laws are applied to agreements entered into and to be performed entirely within the State of Delaware between Delaware residents.
10.4. Arbitration In General. Any claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or relating to this Contract, including the interpretation, performance, breach or termination thereof, shall be exclusively and finally resolved by arbitration. The arbitration shall be conducted in the English language by a single arbitrator, and every person named on all lists of potential arbitrators, shall be a neutral and impartial lawyer with excellent academic and professional credentials (i) who has practiced law for at least ten (10) years, with experience in the field of software development and distribution and intellectual property law, and (ii) who has had experience, and is generally available to serve, as an arbitrator. The arbitrator shall be bound by the provisions of this Contract and base the decision on applicable law and judicial precedent, shall include in such decision the findings of fact and conclusions of law upon which the decision is based, and shall not grant any remedy or relief that a court could not grant under applicable law. The arbitrator's decision shall be final and binding upon the parties, and shall not be subject to appeal. Notwithstanding the foregoing, either party may enforce any judgment rendered by the arbitrator in any court of competent jurisdiction. In addition, the arbitrator shall have the right to issue equitable relief, including (without limitation) preliminary injunctive relief.
10.5. Arbitration for Customers in USA & Canada. If Customer is organized, resides or has an office in the United States or Canada, arbitration shall be conducted in Wilmington, Delaware, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
10.6. Arbitration for Customers Outside of USA & Canada. If Customer is not organized in, does not reside in, and does not have an office in, the United States or Canada, arbitration shall be conducted in London, United Kingdom in accordance with the Rules of Arbitration of the International Chamber of Commerce.
10.7. English Language. The parties have agreed to execute this Contract and provide all services in the English language. Any action brought under this Contract shall be conducted in the English language.
10.8. Force Majeure. Percona will not be liable to Customer by reason of any failure in performance of this Contract if the failure arises out of general failure of internet communications, acts of God, acts of the Customer, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism or war, or any causes beyond the reasonable control of Percona.
10.9. Severability. In case any one or more of the provisions contained in this Contract shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Contract, and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, such as with respect to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it to the minimum extent necessary, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
10.10. Waiver. The waiver by either party of a breach of any provision of this Contract by the other shall not operate or be construed as a waiver of any other or subsequent or preceding breach. No waiver by either party of any right under this Contract shall be construed as a waiver of any other right.
10.11. Entire Contract. This Contract constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter, including (without limitation) any non-disclosure agreement that the parties may have signed prior to the Effective Date. The terms of this Contract will govern all Services undertaken by Percona for Customer; any terms contained in documents provided by Customer which are inconsistent with this Contract are invalid. No modification of or amendment to this Contract or Work Assignment(s), nor any waiver of any rights under this Contract, will be effective unless in writing and signed by authorized representatives of both parties. All Customer documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Contract unless this provision is specifically referred to and waived by Percona in writing.
PAY AS YOU GO CONSULTING
1.1. No Billable Time Obligation. Customer has no obligation to purchase any billable time. Customer pays only for work actually performed, if any is requested. No payment due upon signing of this Contract.
1.2. Automatic Credit Card Billing. Customer shall provide a credit card against which fees and expenses can be automatically billed each month by Percona. Customer authorizes Percona to debit the Customer's credit card monthly in US dollars for any and all fees incurred, if any.
1.4. Emergency Help. Percona desires to help all emergency requests from pay as you go customers. However Percona may opt to decline Customer's emergency help requests based on limited manpower availability or other factors, at Percona's sole discretion.
1.6. Contract Renewal. Contract and then current Work Assignment(s) renew annually on contract anniversary date for the following year until cancelled by either party. On each anniversary fees will adjust to Percona's then current rates.
- All normal tasks that were scheduled in advance, except as noted below.
- Emergency help.
- MySQL Cluster engine tasks.
- Data recovery tasks, whether done on an emergency basis or not.
- Disruptive scheduling (i.e. night, weekend, or holiday timing for consultant; overbooking and rescheduling; sudden cancellations of pre-scheduled work by Customer; failure to appear when promised by Customer's staff; or other complicating factors).
- Any Customer requirement to use only a named consultant.
- Work done personally by the senior technical experts named on http://www.percona.com/prices/per-hour-prices if of an advanced or in-depth nature.
- Any other type of premium work so identified on http://www.percona.com/prices/per-hour-prices and not otherwise inconsistent with the rates stated in this Work Assignment.
- On Site. Rates and policies are as posted at http://www.percona.com/prices/on-site-prices/
- On Call Rate. Rate is $50 per hour when consultants are required to remain accessible on short notice at Customer's request.
Contract version 2011-04-29 PayGo