Turnkey Project Service Conditions Agreement

This Services Agreement (“Agreement”) is entered into by, as applicable, the customer signing this Agreement or any document that references this Agreement (“Customer”) and MonetDB Solutions B.V. (“Company”). This Agreement is effective as of the date of purchasing the Continuous QA Service (“Effective Date”).

1. Scope of Work.
1.1 The services provisioned (“Services”) are geared at aims at providing tailored Turnkey development, R&D, enhancements of the MonetDB software suite, bug fixes and feature enhancements of the MonetDB software suite to boost Customer’s experience of using MonetDB. Company shall provide the Services set forth in a separate Statement-of-Work (SOW) signed by both parties.

1.2 Customer shall appoint a liaison in connection with the performance of this Agreement, and with whom Company shall be able and entitled to maintain all contacts, decisions, and (financial) reporting.

2. Fees.
2.1 Customer shall pay Fees set forth in a separate SOW signed by both parties. Customer shall pay directly any taxes arising out of this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Company’s net income and all employer reporting and payment obligations with respect to Company’s personnel.

2.2 A standard discount of thirty per cent (30%) over the total cost of a Turnkey Project can be earned by Customer by making the products of the Turnkey Project available to the open-source releases of the MonetDB software suite.

2.4 Customer shall pay directly any taxes arising out of this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Company’s net income and all employer reporting and payment obligations with respect to Company’s personnel.  All prices mentioned in a TurnKey Project offer exclude the taxes mentioned here, unless otherwise stated.

3. Publicity and Confidentiality.
3.1 Company will be permitted to reference its relationship with Customer on its website, during discussions with analysts, meetings with the press, customer briefings, or in regulatory filings unless Customer explicitly opted out for this clause. In case of public press coverage, Customer will work with the Company to release a mutually agreed upon press release.

3.2 For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” Confidential Information means all information concerning the parties’ business including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) the terms of any agreement between Customer and Company and the discussions, negotiations and proposals related to that agreement. Confidential Information disclosed to the other party must be clearly identified. Written Confidential Information must be clearly marked in a conspicuous place with an appropriate legend identifying the information as confidential. Confidential Information that is not written must be identified before, during, or promptly after presentation or communication. The Recipient does not have an obligation to protect Confidential Information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient. If Confidential Information is required to be produced by law, court order, or governmental authority, the Recipient must immediately notify the Discloser of that obligation. The Recipient will use the Confidential Information only to further the relationship between the parties. Confidential Information may not be disclosed to any third party without the written consent of the Discloser. At the Discloser’s request, all written, email, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to the Discloser or destroyed by the Recipient. At the request of the Discloser, the Recipient will furnish a certificate, signed by an officer of the Recipient, certifying that any Confidential Information not returned to the Discloser has been destroyed. The Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that this right to Residuals does not represent a license under any intellectual property and/or proprietary rights of disclosing party.

3.3 If Company is threatened to be injured or its reputation is threatened to be harmed by the fact that the Customer, without Company’s written consent, is providing information related to Company to third parties, Company shall be exempted from the secrecy obligation referred to in the previous paragraph.

4. Intellectual Property.
4.1 Unless otherwise stated, modifications made to the MonetDB open-source software suite, including code, tests, and documentation, as a result of work performed by Company for Customer under this contract may become available in future releases of the MonetDB source code, under the then prevailing license structure issued by MonetDB Solutions.

4.2 Company grants to Customer a nonexclusive, non-transferable, royalty-free license to use any Deliverables for Customer’s internal purposes.

4.3 Customer grants to Company a nonexclusive, non-transferable, royalty-free license to use Customer’s materials provided by Customer to Company during the Term of this Agreement solely for the purpose of performing the Services for Customer.

5. Warranty and Disclaimer.
5.1 Company warrants that the Services and Support shall be performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services and Support. If Customer believes there has been a breach of this warranty, Customer must notify Company in writing promptly following delivery of the Services or Support stating in reasonable detail the nature of the alleged breach. If there has been a breach of this warranty, then Company’s sole obligation, and Customer’s exclusive remedy, shall be for Company to correct or re-perform, at no additional charge, any affected Services or Support to cause them to comply with this warranty.

5.2 Upon explicit request by Customer, products of a Turnkey Project can be provided through a proprietary clone of a MonetDB version. A proprietary clone is not part of the MonetDB official release line, and will thus not be maintained. Continuous QA service cannot be provided for proprietary clones.

5.3 EXCEPT AS PROVIDED IN SECTION 5.1 ABOVE, THE SOFTWARE, SUPPORT, AND SERVICES INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, NEITHER THE SOFTWARE NOR THE UPDATES ARE SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS.

6. Limitation of Liability.

6.1 IN NO EVENT WILL COMPANY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED.

6.2 FOR ANY AND ALL OTHER CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT NOT COVERED BY SECTION 6.1, IN NO EVENT WILL COMPANY’S CUMULATIVE LIABILITY EXCEED THE AMOUNT OF THE TOTAL FEES PAID TO COMPANY UNDER THIS AGREEMENT BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING ANY SUCH CLAIM).

6.3 IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY CUSTOMER OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS PROVIDED IN THE MONETDB’s LICENSE, AS FOUND AT http://www.monetdb.org/Legal/MonetDBLicense.

6.4 THE PROVISIONS OF THIS SECTION 6 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND COMPANY. COMPANY’S FEES FOR THE SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.

7. Indemnification.
7.1 Company shall have no liability of alleged infringement for using its software, or enhancements to the software used and deployed by the Customer in relationship to this agreement.

8. Terms and Termination.
8.1 This Agreement shall be in effect until it is terminated as provided in Section 2.2 and 2.3 (the "Term"). The expiration or termination of this Agreement shall not affect any Order Form or SOW in effect on the date of expiration or termination. Either party may terminate this Agreement, Order Forms and SOWs in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice.

8.2 Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement.

9. General.
9.1 Disputes, which cannot be settled amicably by negotiation between the parties, shall be exclusively settled by arbitration in Amsterdam under the rules of the Netherlands Arbitration Institute (“NAI”) at Rotterdam by three (3) arbitrators appointed in accordance with said rules. The language of arbitration shall be Dutch.

9.2 The MonetDB Solutions GENERAL CONDITIONS apply, unless otherwise specified in this Agreement.

9.3 Unless otherwise specified in this Agreement, all notices shall be in writing and shall be mailed (via registered or certified mail, return receipt requested), delivered by a nationally recognized express courier service with the ability to track shipments, or personally delivered to the other party at the address set forth above (or at such other address as either party may designate in writing to the other party). All notices shall be effective upon receipt.

9.4 This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, executed by both parties and expressly state that they are amending this Agreement. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Support and Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.

9.5 Failure to enforce any provision of this Agreement shall not constitute a waiver thereof. No waiver shall be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver shall not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions shall be interpreted to best accomplish the unenforceable provision’s essential purpose.

9.6 Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded. Both parties hereto agree to use their best efforts to minimize the effects of such failures or delays.