2.1 Engagement. This Agreement will be implemented through one or more Order Documents executed by the parties from time to time and provides the terms and conditions applicable to all Order Documents. Any modification of these terms and conditions within an Order Document will apply only to that Order Document in which the modification is set forth.
2.2 Services. OtterTune agrees to undertake the Services and to use commercially reasonable efforts to complete the Services in accordance with the descriptions and schedules specified therein.
2.3 Cooperation. Customer acknowledges that the Services will be performed in cooperation with Customer personnel. In addition, Customer will furnish to OtterTune such (a) descriptions, specifications, materials, data and other information, including without limitation, Customer target database management systems’ runtime metrics and configuration knobs (collectively, “Customer Information”), (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, systems and networks, in each case of (a), (b) and (c), as reasonably necessary or appropriate to enable OtterTune to perform the Services. Customer hereby grants OtterTune: (i) a nonexclusive, royalty-free, fully paid-up, worldwide, transferable right and license to use the Customer Information for the purpose of performing Services under this Agreement and (ii) a nonexclusive, royalty-free, fully paid-up, worldwide, perpetual, irrevocable, transferable right and license, with the right to sublicense (through multiple tiers), to use the Customer target database management systems’ runtime metrics (e.g., internal performance statistics), configuration knobs (e.g., MySQL’s “my.cnf” parameters), utilization, versions, queries, schema and other similar information to improve, enhance and otherwise modify OtterTune’s Services and for other research, development, improvement, diagnostic and corrective purposes in connection with OtterTune’s other products and services and to use and disclose aggregated and anonymized Customer Information for any purpose (the “DBMS Metrics & Knobs License”). Customer agrees that in performing the Services OtterTune (i) will use and rely primarily on the Customer Information and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Information and will not undertake to verify its accuracy or completeness.
2.4 Problems. If Customer (or its third-party licensors or vendors) fails to fulfill any of its responsibilities in a timely manner under Section 2.3 for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of the Services or results in additional costs, then OtterTune may act as it deems prudent to mitigate such effects. In such event, Customer agrees (a) to pay OtterTune its reasonable additional costs and (b) that any delivery dates, milestones, or other time limits specified for OtterTune’s performance shall be appropriately extended.
3.1 Customer Information. Customer represents and warrants that it owns all right title and interest, or possesses sufficient license rights, in and to the Customer Information as may be necessary to authorize the use thereof contemplated by this Agreement. Customer agrees, as between the parties, Customer bears all responsibility and liability for the accuracy, completeness, possession and use of Customer Information in connection with the Services. Except for the limited rights and licenses expressly granted hereunder concerning the Customer Information, no other license is granted, no other use is permitted, and Customer shall retain all right, title and interest in and to all Customer Information (including all intellectual property and proprietary rights therein).
3.2 Deliverables. Unless otherwise agreed by the parties in writing, as between the parties, OtterTune shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Deliverables. OtterTune agrees to grant and hereby grants Customer a nonexclusive, worldwide, perpetual, irrevocable, nontransferable right and license (without right to sublicense) to use OtterTune’s rights in such Deliverable internally, subject to any other rights, restrictions or limitations set forth in this Agreement, including without limitation in the Order Document (the “Deliverables License”). Except for the limited rights and licenses expressly granted hereunder concerning the Deliverables, no other license is granted, no other use is permitted and OtterTune (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights therein) in and to all Deliverables and all information, ideas, know-how, methods, processes, software (such as, for example, computer programs and other libraries, routines, utilities, functions or components), APIs, systems, platforms, gateways and other technologies that are used in performing any Service.
3.3 General Learning. Customer agrees that OtterTune is free to reuse all generalized knowledge, experience, know-how, and technologies (including ideas, concepts, processes, and techniques) related to the Deliverables or acquired during performance of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).
3.4 Background IP. Customer acknowledges that OtterTune possesses certain data, inventions, processes, methods know-how, trade secrets, computer technical expertise, software, and other intellectual property, independently developed and which is owned or controlled by OtterTune (collectively, “OtterTune Background IP”). OtterTune and Customer agree that (a) the OtterTune Background IP and (b) all improvements or modifications thereto which are conceived, made, or reduced to practice as a result of the provision of Services, shall be and remain the property of OtterTune.
3.5 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any OtterTune Confidential Information to create any software or documentation that is similar to the Software or any Deliverable, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Software or any Deliverable (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer or distribute the Software or any Deliverable, or (d) permit any third party to do so.
4.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business, or technical information that are disclosed by or for a party in relation to this Agreement (including all copies, analyses, and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by their nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that the receiving party can demonstrate is (a) furnished to it by a third party, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on Confidential Information of the disclosing party. All Deliverables and pricing information are deemed to be OtterTune Confidential Information.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not possess, access, use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information. Each party shall be responsible for any breach of
confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom, except that (a) Customer may retain a reasonable number of copies of the Deliverables in order to benefit from the Deliverables License and (b) OtterTune may retain a reasonable number of copies of the Customer target database management systems’ runtime metrics and configuration knobs in order to benefit from the DBMS Metrics & Knobs License. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry or legal or regulatory requirement.
5.1 Fees and Expenses. Customer agrees to pay OtterTune fees in the amounts and at the times specified in the applicable Order Document.
5.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid within 30 days after invoice in US dollars at OtterTune’s address (or, at its option, to an account specified by OtterTune). Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse OtterTune for all costs (including attorneys’ fees) incurred in collecting late payments.
5.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon OtterTune’s net income.
6.1 Services. OtterTune warrants that the Services will be performed in a professional and workmanlike manner. Any warranty claim under this Section 6.1 must be made in writing within 30 days after performance of the nonconforming Service. OtterTune’s sole obligation and Customer’s exclusive remedy in respect thereof is to reperform the
nonconforming Service or, at OtterTune’s sole discretion, to terminate this Agreement in respect of the nonconforming Service and refund to Customer the fees paid therefor (if any).
6.2 Disclaimers. EXCEPT AS SPECIFICALLY STATED HEREIN, THE SOFTWARE, DELIVERABLES AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. OTTERTUNE DOES NOT WARRANT THAT: OPERATION OF THE SOFTWARE, DELIVERABLES OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR ANY ERRORS WHICH MAY BE CONTAINED IN THE SOFTWARE, DELIVERABLES OR SERVICES CAN OR WILL BE FIXED. TO THE FULLEST EXTENT PERMITTED BY LAW, OTTERTUNE HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DELIVERABLES AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.LIMITATION OF LIABILITY.
EXCEPT IN THE CASE OF DEATH, BODILY INJURY OR FRAUD OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL OTTERTUNE BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF THE DELIVERABLE OR SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) AGGREGATE DAMAGES IN EXCESS OF THE GREATER OF (I) AMOUNTS PAID TO OTTERTUNE BY CUSTOMER HEREUNDER WITH RESPECT TO THE SERVICE OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE AND (II) $250, EVEN IF OTTERTUNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.1 Term. This Agreement shall commence on the Effective Date set forth in the Order Document and continue in effect until the Expiration Date set forth in the Order Document.
8.2 Cause. This Agreement may be earlier terminated (in whole, or in respect of any Order Document) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party.
8.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) Customer’s liability to pay for Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination date, (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 2.3(ii) (Cooperation), 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6.2 (Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8.3 (Effects of Termination) shall survive.
9.1 Entire Agreement. This Agreement (including any applicable Order Document) constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation, or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original signature. No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Publicity. Customer hereby consents to OtterTune’s inclusion of its name in customer listings that may be published as part of OtterTune’s marketing efforts.
9.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Pennsylvania having jurisdiction over OtterTune’s facility, and both parties consent to the jurisdiction of such courts with respect to any such action.
9.4 Relief. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
9.5 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses first stated above or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
9.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. OtterTune may also subcontract performance of any Service. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
9.7 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.8 No Interference. During the term of this Agreement and for 1 year thereafter, Customer will not directly or indirectly recruit, employ, or retain any employee of OtterTune, or otherwise solicit, induce or influence any employee to leave their employment with OtterTune, or attempt to do so.
9.9 Force Majeure. No damages shall be due for a failure of performance occurring due to Acts of God, war, terrorist act, government regulation, governmental travel advisories or restrictions, or other government acts, curtailment of transportation facilities, riots, disaster, fire or other casualty, epidemic, pandemic, power interruption or failure, strikes or other labor action, or any other cause outside the reasonable control of the party asserting force majeure (“Force Majeure”), which makes performance illegal, impossible or commercially impracticable, provided that the party seeking such relief from nonperformance makes reasonable efforts to overcome any such occurrences and promptly notifies the other party in writing of such circumstances.