Percona Master Services Agreement (01-01-2017)
This Master Services Agreement ("the Agreement") is made effective as of the date the SOW referencing this Agreement is countersigned, the "Agreement Effective Date", between the entity or other person signing the SOW (the Customer) and Percona LLC, a Delaware limited liability company (Percona).
1. Services. Customer engages Percona to provide those Services (Services) set forth in one or more Statements of Work (SOW) signed by authorized representative of both parties, in exchange for Customer’s timely payment of all fees described in an applicable SOW. SOWs define the type of Services provided and rates applicable. The initial SOW is attached to and becomes a part of this Agreement. Additional SOWs may be mutually executed in writing at any time. Customer will make its facilities and equipment available to Percona, including via remote internet access, when necessary.
2. Claims. Any Customer complaints, including (without limitation) concerning billing or work performance, must be presented to Percona in writing within 90 days after the invoice date or work date. Failure to do so constitutes a waiver of claims.
3. Termination. Either party may terminate this Agreement at any time, with or without cause, upon fifteen (15) days’ prior written notice. All SOWs shall terminate concurrently with termination of this Agreement. Percona shall be paid in full for all Services rendered and reimbursable expenses incurred prior to the effective date of termination. If this Agreement is terminated at the initiative of Percona without cause, any amounts pre-paid but for which Services have not been rendered shall be refunded on a pro-rata basis; otherwise, payments are non-refundable. Sections 3, 4, 5, 6, 8, 9, 10 and 13 through 24 will survive termination of this Agreement. Notwithstanding anything to the contrary herein, Percona reserves the right to immediately suspend performance until such time as Customer cures any material breach to Percona’s satisfaction.
4. Relationship. The parties are independent contractors. Nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Customer and Percona or its staff. Percona is not the agent of Customer or vice versa; neither party is authorized to make commitments on behalf of the other. Percona may use its own employees and contractors, and employees and contractors of its subsidiary companies (Percona Staff, when providing Services.
5. Licenses. Unless otherwise expressly provided in an applicable SOW: (a) For any custom software developed exclusively at the direction of Customer, and not subject to any other license below, Percona irrevocably assigns to Customer ownership of its copyright in such custom software product if requested by Customer and agreed in writing by Percona; (b) For any third party software code or other third party works delivered or made available to Customer in connection with this Agreement are subject to the terms and conditions of the applicable third party license; (c) For any bug fixes, modifications, developments or other software code delivered or made available on behalf of Customer for any open source product or project is subject to the same terms and conditions as the underlying open source product or project; and (d) For any non-open source Percona product delivered or made available to Customer in connection with this Agreement is licensed to Customer subject to the terms and conditions of the applicable SOW. This Agreement shall not be deemed to replace or otherwise amend any Customer rights or obligations which may exist pursuant to an applicable version of the GNU General Public License or Lesser Public License. Percona and its vendors reserve any and all rights not expressly granted in this Agreement, an applicable third party license or an applicable SOW.
6. Non Solicitation. Neither party shall, during the term and for one (1) year after termination, solicit for hire any of the other party's employees or contractors. In the event of hiring without the other party’s written consent, the hiring party agrees to pay the other One Hundred Fifty Thousand U.S. dollars. The parties agree that the foregoing is a reasonable, liquidated amount, and not a penalty. But nothing shall prevent either party from hiring a respondent to a general solicitation not personally directed to him or her.
7. Acceptance. 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 business.
8. Endorsements. Customer may not claim that Percona or any Percona Staff have endorsed any Customer product or service without prior written permission.
9. Authority. Customer represents and warrants Customer has the full right to enter into this Agreement without the consent of any third party, and that performance of this Agreement will not conflict with any other obligations. Customer shall provide advance written notice to Percona if any software with respect to which it has engaged Percona is subject to a license other than a FOSS (Free or Open Source Software) License such as a GPL, LGPL or BSD license. Customer shall defend, indemnify and hold Percona and all its subsidiaries and their respective officers and directors harmless from any third party claims and any related costs and expenses that arise in connection with use of any non-FOSS license including (without limitation) intellectual property infringement claims.
10. Confidentiality. “Confidential Information” is any information disclosed by a Disclosing Party to a Receiving Party and clearly marked as confidential or identified in writing to Receiving Party as confidential. Receiving Party shall: (a) not use or reproduce Confidential Information except as required to accomplish the purpose discussed or as required by judicial or other governmental order; and (b) disclose Confidential Information only to staff with a need to know or access to Percona’s internal web-based systems and tools, and who have also signed a non-disclosure agreement with Percona or a Percona subsidiary. Customer acknowledges that Percona may store Confidential Information on Percona’s internal servers and that Percona Staff are from multiple nations of citizenship and residence. This Agreement is non-exclusive; either party may independently develop or acquire products or services without use of the other party’s Confidential Information, and either party may currently, or in the future, develop information internally, or receive information from other parties, that is similar to Confidential Information, and/or work with a competitor of the other party, provided that it maintains the confidentiality of Confidential Information. Confidential Information remains the property of Disclosing Party and shall be returned or destroyed upon written request. Copies of Confidential Information deleted from Receiving Party’s systems may remain in a backup file until such system is overwritten. This Section shall survive for one (1) year after termination of the Agreement.
11. Compliance. Customer represents and warrants that, prior to execution of this Agreement, Customer provided to Percona written notice of any regulatory schemes with which Percona must comply in connection with the Services, such as (without limitation) the privacy or security rules of the USA Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act, or similar legislation.
12. Security. To the extent permitted by the parties’ respective computer system infrastructures, Percona agrees to abide by written security standards provided in writing by Customer to Percona prior to execution of this Agreement and incorporated by reference in an applicable SOW. It is Customer’s sole responsibility at all times to maintain an up-to-date and restorable backup of all Customer databases, files, utilities, software and other systems. Notwithstanding any other provision in this Agreement, as a matter of security Customer agrees not to provide Percona with access to any personally identifiable information or other sensitive information. The foregoing sentence does not apply to Services provided under any Remote DBA SOW.
13. Liability. Except with respect to Section 9, neither party nor its affiliates and/or subsidiaries will be liable for special, incidental, indirect, exemplary or consequential damages or lost profits arising out of or in connection with this Agreement (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 Agreement, except in the event of a breach of Section 9, 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 Agreement being aggregated to determine satisfaction of the limit. The existence of one or more claims will not enlarge the limit. The parties 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 Agreement. Customer agrees that this section represents a reasonable allocation of risk and that Percona would not proceed in the absence of such allocation.
14. Warranties. Percona will use its good faith, commercially reasonable efforts to perform the Services in a timely, professional and workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 14, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PERCONA NOR ANY OF ITS VENDORS OR AFFILIATES MAKES ANY WARRANTIES WHATSOEVER IN CONNECTION WITH THE SERVICES OR ANY WORK PRODUCT PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOW, AND PERCONA, ITS VENDORS AND AFFILIATES EXPRESSLY DISCLAIM, 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERCONA DOES NOT WARRANT RESULTS OR WARRANT THAT ANY SERVICES OR WORK PRODUCT WILL BE FREE FROM ERRORS, DEFECTS, OR BUGS.
15. Taxes. All rates in SOWs are exclusive of local, state, federal and international sale, value added, excise and other taxes and duties of any kind. Other than taxes levied on Percona’s net income, Customer agrees to pay any and all taxes and duties arising from this Agreement. 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.
16. 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, accrued on a daily basis after as well as before any judgment relating to collection of the amount due; late fees shall not constitute Percona’s exclusive remedy. Late payment shall entitle Percona to immediately discontinue any or all Services to Customer until payment has been received, or terminate this Agreement for cause, immediately, regardless of the Customer’s technical circumstances at the time. 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. Unless otherwise expressly provided in a SOW, Services do not include travel at Percona’s expense. If Percona staff travels at Customer's request, Customer shall pay for airfare, hotel, ground transportation, and meals, which will be invoiced separately at cost.
17. Successors and Assigns. Either party may assign this Agreement to the successor-in-interest of a merger, acquisition or sale of substantially all of the party’s assets, provided the assigning party provides written notice thereof to the other party within 30 days after the effective date of the assignment; otherwise, this Agreement may not be assigned without the other party's consent, and any such attempted assignment shall be void and of no effect. Subject to the foregoing, the terms and conditions of this Agreement shall bind, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. There are no intended third party beneficiaries of this Agreement.
18. Notices. All breach-related notices under this Agreement shall be in writing and 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.
19. Customer as a Reference. The Customer agrees that Percona may use the Customer name and logo in marketing materials, including websites, collateral and presentations. Subject to prior written permission, the Customer agrees to provide a quote for web sites and press releases and/or to participate in a case study and press release. Use of the Customer as a reference may continue indefinitely unless Percona is notified otherwise in writing.
20. Governing Law. This Agreement shall be governed in all respects (without regard to any conflict of laws provisions) by the laws of the United States of America and 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.
21. Arbitration. Any claim, whether based on contract, tort or other legal theory arising out of or relating to this Agreement, including interpretation, performance, breach or termination, shall be exclusively and finally resolved by arbitration conducted in the English language by a single arbitrator. If Customer is organized in North or South America, arbitration shall be conducted in Wilmington, Delaware, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If Customer is organized elsewhere, arbitration shall be conducted in London, United Kingdom in accordance with the Rules of Arbitration of the International Chamber of Commerce. The arbitrator shall be bound by the provisions of this Agreement, base the decision on applicable law and judicial precedent, include in such decision the findings of fact and conclusions of law upon which the decision is based, and not grant any remedy or relief that a court could not grant under applicable law. The arbitrator's decision shall be final and binding, and not 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.
22. Force Majeure. Percona will not be liable to Customer by reason of any failure in performance of this Agreement 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.
23. Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
24. Waiver. The waiver by either party of a breach of any provision of this Agreement 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 Agreement shall be construed as a waiver of any other right.
25. Entire Agreement. This Agreement 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 Agreement will govern all Services undertaken by Percona for Customer; any terms contained in documents provided by Customer which are inconsistent with this Agreement are invalid. No modification of or amendment to this Agreement or any SOW, nor any waiver of any rights under this Agreement, 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 Agreement unless this provision is specifically referred to and waived by Percona in writing.