Exhibit 10.18
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
CONTRACTOR AGREEMENT
This Contractor Agreement, effective as of 1 February 2001 (the "Effective
Date"), is entered into by and between Persistent Systems Pvt. Ltd., a Private
Limited Company of India, having a principal place of business at 'Xxxxxxxxxx',
000 Xxxxxxxx Xxxxx Xxxx, Xxxx 000000 XXXXX (hereinafter referred to as
"Contractor") and Netezza Corporation, with office located at 0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx, XX 00000, XXX (hereinafter "Company").
1. Engagement: Contractor agrees to act as contractor and the Company agrees
to retain the services of Contractor to Company beginning on the Effective
Date and continuing until terminated pursuant to section 11 below. During
the term of this Agreement, Contractor shall perform software development
services as detailed in Attachment A, Statement of Work. Change orders may
be made and additional tasks may be added to the Statement of Work during
the term of this Agreement upon mutual written agreement of Contractor and
Company. No changes or additions may be implemented or acted upon by
Contractor unless agreed to prior to the incurring of any additional cost
or impact on the schedule.
2. Commercially Reasonable Efforts: In rendering services pursuant to this
Agreement, Contractor agrees to devote its commercially reasonable efforts
to the performance of its duties and responsibilities under this Agreement.
Company agrees to devote its commercially reasonable efforts to support the
activities of the Contractor to perform its duties and responsibilities
hereunder.
3. Independent Contractor: Contractor's relationship with Company is that of
an independent contractor, and nothing in this Agreement will be construed
to create a partnership, joint venture, agency, or employer-employee
relationship. Company does not have the right to control the exact manner
or determine the precise method of accomplishing the services. However,
Company is entitled to exercise a broad, general right of supervision and
control over the results of the services performed by Contractor to ensure
satisfactory performance thereof. This power of supervision includes the
right to inspect, stop work, make suggestions or recommendations as to the
details of the work, and request modifications to the scope of the
services. Contractor is responsible for furnishing all labor to perform its
services hereunder unless specifically set forth in Attachment A.
Contractor is not authorized to assume or create any obligation or
responsibility, express or implied, on behalf of, or in the name of,
Company or to bind Company in any manner, unless specifically requested or
authorized to do so in writing by Company. Contractor will under no
circumstances perform duties not related to the work assigned explicitly to
the Contractor under this Agreement. Contractor acknowledges that Company
will not withhold any federal income tax, state income tax, social security
tax, or state disability insurance tax from amounts to be paid to
Contractor under this Agreement. Contractor further acknowledges that
Company will not pay FICA or federal or state unemployment insurance on
Contractor's behalf, and will not cover Contractor or any of its employees
under any worker's compensation insurance, unemployment insurance,
retirement plan, health care plan, disability or life insurance plan,
vacation plan, or any other benefit plan which Company provides for its
employees. Contractor shall carry, at the expense of Contractor,
appropriate worker's compensation and liability insurance to cover
Contractor, its employees, and the performance of the obligations in this
Agreement.
4. Payments: For the services to be rendered under this Agreement, Company
agrees to pay Contractor as compensation for its services, and the
Contractor agrees to accept as full compensation, amounts as per the rates
given in Attachment A. Payment under this Agreement will be made upon
presentation and acceptance of an invoice faxed on the last working day of
each month. Upon submission of an itemized expense report in Contractor's
format and original receipts for expenses incurred by Contractor, Company
will also reimburse Contractor for travel and travel-related expenses as
set forth in Attachment A. All approved fees are payable to Contractor net
[**] days from invoice unless otherwise specifically set forth in
Attachment A.
5. Confidentiality: It may be necessary during the term of this Agreement for
one party (the "Disclosing Party") to provide the other party (the
"Receiving Party") with certain materials of a private, secret,
confidential, or proprietary nature concerning the Disclosing Party's
technology, business, business relationships, or financial affairs in
electronic, written, oral, and/or physical sample form ("Confidential
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Information"). By way of illustration, but not limitation, Confidential
Information may include inventions, products, processes, methods,
techniques, algorithms, drawings, projects, developments, plans, research
data, financial data, personnel data, computer software or hardware,
customer and supplier lists, and contacts at or knowledge of customers or
prospective customers of the Disclosing Party.
a. NONDISCLOSURE. The Receiving Party (a) shall treat all Confidential
Information as strictly confidential, (b) shall not disclose any
Confidential Information to any other person or entity without the
prior written consent of the Disclosing Party, (c) shall protect the
Confidential Information with at least the same degree of care and
confidentiality as it affords its own confidential information, at all
times exercising at least a reasonable degree of care in such
protection, and (d) shall not use any Confidential Information in any
manner except for purposes of conducting business with the Disclosing
Party, or as otherwise agreed by the Disclosing Party in writing.
Notwithstanding the foregoing, the Receiving Party may disclose
Confidential Information pursuant to an order of a court or
governmental agency as so required by such order, provided that the
Receiving Party shall first notify the Disclosing Party of such order
and afford the Disclosing Party the opportunity to seek a protective
order relating to such disclosure. The Receiving Party hereby agrees
to notify the Disclosing Party immediately if it learns of any use or
disclosure of any Disclosing Party Confidential Information in
violation of the terms hereof. Company and Contractor each agree that
disclosure of Confidential Information of either Disclosing Party
shall be limited by the Receiving Party to employees of the Receiving
Party having a need-to-know, and that such employees shall execute and
be bound by an employee agreement requiring handling of Confidential
Information in accordance with the terms of this Agreement.
b. LIMITATIONS. Notwithstanding the foregoing, Confidential Information
shall not include any information, which the Receiving Party can show:
(a) is now or later has become available in the public domain without
breach of this Agreement by the Receiving Party, or (b) was in the
possession of the Receiving Party prior to disclosure to the Receiving
Party by the Disclosing Party, or (c) was received from a third party
without breach of any nondisclosure obligations to the Disclosing
Party or otherwise in violation of the Disclosing Party's rights, or
(d) was developed by the Receiving Party independently of any
Confidential Information received from the Disclosing Party.
c. TERM. The Receiving Party shall observe all obligations hereunder with
respect to disclosures of Confidential Information for a period of
three (3) years after the particular Confidential Information was
received from the Disclosing Party. The terms of this section will
survive the termination of this Agreement.
d. TITLE AND PROPRIETARY RIGHTS. Notwithstanding the disclosure of any
Confidential Information by the Disclosing Party to the Receiving
Party, the Disclosing Party shall retain title thereto and to all
intellectual property and proprietary rights therein, and the
Receiving Party will have no rights, by license or otherwise, to use
the Confidential Information except as expressly provided herein. The
Receiving Party shall not alter or obliterate any patent notice,
trademark, trademark notice, copyright notice, confidentiality notice,
or any notice of any other proprietary right of the Disclosing Party
on any copy of the Confidential Information, and shall faithfully
reproduce any such xxxx or notice on all copies of such Confidential
Information.
e. RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party will promptly
return all tangible material embodying Confidential Information (in
any form and including, without limitation, all summaries, copies, and
excerpts of Confidential Information) upon the earlier of (a) the
completion or termination of services pursuant to this Agreement, and
(b) the Disclosing Party's written request.
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f. THIRD-PARTY INFORMATION. The parties agree that the terms of this
section extend to such types of information, materials, and tangible
property of third parties who may have disclosed or entrusted the same
to either party with the expectation of confidentiality.
6. Approval Process: Company shall have the right to inspect, and accept or
reject, any deliverable item under the Statement of Work. If within thirty
(30) days of delivery of any deliverable item, Company determines in good
faith that any item does not conform to any condition of this Agreement,
the Statement of Work, or otherwise does not function properly, then in
addition to any other remedy available to Company, Company may return such
item to Contractor for correction or modification. Contractor shall, at its
sole expense, correct or modify such item and deliver the same to Company
as expeditiously as possible. Unless otherwise requested by Company and
agreed to in writing by Contractor, failure to give Contractor notice of
nonconformance within the thirty (30) day period will constitute acceptance
of that deliverable item by Company.
7. Ownership/Work for Hire: All inventions, discoveries, computer programs,
data, technology, designs, innovations, and improvements (whether or not
patentable and whether or not copyrightable) ("Inventions") related to the
business of Company which are made, conceived, reduced to practice,
created, written, designed, or developed by Contractor, solely or jointly
with others, during the term of this Agreement or thereafter if resulting
or directly derived from Confidential Information (as defined in section 5
above), shall be the sole property of Company. Contractor hereby assigns to
Company all Inventions and any and all related patents, copyrights,
trademarks, trade names, and other industrial and intellectual property
rights and applications therefor, in the United States and elsewhere, and
appoints any officer of Company as its duly authorized attorney to execute,
file, prosecute, and protect the same before any government agency, court,
or authority. Upon the request of Company, Contractor shall execute such
further assignments, documents, and other instruments as may be necessary
or desirable to fully and completely assign all Inventions to Company and
to assist Company in applying for, obtaining, and enforcing patents or
copyrights or other rights in the United States and in any foreign country
with respect to any Invention. Contractor also hereby waives all claims to
moral rights in any Inventions. Contractor shall promptly disclose to
Company all Inventions and will maintain adequate and current written
records (in the form of notes, sketches, drawings, and as may be specified
by Company) to document the conception and/or first actual reduction to
practice of any Invention. Such written records shall be available to and
remain the sole property of Company at all times. Contractor agrees that it
will obtain contractual obligations legally sufficient to effectuate its
obligations under this section from its employees who provide services
pursuant to this Agreement. Contractor shall provide copies of such
agreements to Company. Company acknowledges that Contractor enters this
Agreement already possessing substantial skill in the field in which
Contractor has been retained, and this Agreement in no way limits
Contractor's ability to use these skills in any other application that
Contractor sees fit, except as set forth in section 8 below. In the work
product provided to Company, Contractor is likely to use variants of
algorithms, software development and testing techniques, architectures,
structures, and design methodologies that are known in the art or to
Contractor, and nothing in this Agreement shall limit or prevent Contractor
from reusing these techniques under contract to others or for the purposes
of Contractor's own developments, except as set forth in section 8 below.
8. Non-Competition: During the term of this Agreement and for a period of [**]
thereafter, neither party to this Agreement shall, directly or indirectly,
disclose, discuss, modify, release, transfer, or otherwise make known in
any way any aspect of the other party's Confidential Information to any
other entity at any time. Contractor agrees not to internally develop and
market products that compete with Company's computer hardware products. No
term of this Agreement shall limit either party from developing competing
products under contract to or in partnership with other entities, except
that Contractor agrees not to develop competing computer hardware products.
Neither party may use the Confidential Information of the other party in
the development of such products.
9. Non-Solicitation: During the term of this Agreement and for one (1) year
thereafter, neither party will directly or indirectly recruit, solicit, or
induce any employee, advisor, or consultant of the other party to terminate
his or her relationship with that party.
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10. Property Rights: Contractor agrees to deliver promptly all Company's
property and all copies of Company's property in Contractor's possession at
any time upon Company's request. Upon termination of this Agreement for any
reason, Contractor agrees to deliver promptly to Company all such
documents, whether in written, graphical, or electromagnetic form, together
with any other of Company's property then in Contractor's possession,
except as Company may, by prior written approval, allow Contractor to
retain.
11. Termination: This Agreement may be terminated by either party at any time
upon fifteen (15) days written notice. In the event of termination of this
Agreement, all provisions herein with respect to confidentiality,
ownership, and property rights shall remain in force. Upon receipt of such
notice from Company, Contractor shall cease providing services, advise
Company of the extent to which Contractor has completed the services
through such date, and collect and deliver to Company whatever work product
then exists. Company shall make a final payment to Contractor for all work
performed through the date of such termination, net thirty (30) days.
12. Notices: All notices hereunder shall be given in writing by hand delivery,
courier service, US Mail, or facsimile, addressed to the signatories of
this Agreement at the respective addresses set forth in the first paragraph
of this Agreement, or at such addresses as may from time to time be
designated by either party to the other.
13. Waiver: No failure by either party hereto to exercise and no delay in
exercising any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder by either party
preclude any other or future exercise of any right hereunder by that party.
14. No Subcontract: Contractor agrees that no work under this Agreement shall
be subcontracted to any party without Company's prior written consent, and
that only Contractor and/or its employees will perform the work hereunder.
In the event of any permitted subcontract, the subcontracting party must be
bound by the terms of sections 2, 3, 5, 7, 9, 10, 11, and 12 of this
Agreement.
15. Assignment: This Agreement is not assignable by either party in whole or in
part without the written consent of the other party.
16. Severability: The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
17. Equitable Remedies: The restrictions contained in this Agreement are
necessary for the protection of the business and goodwill of Company and
are considered by Contractor to be reasonable for such purpose. Contractor
agrees that any breach of this Agreement is likely to cause Company
substantial and irrevocable damage and therefore, in the event of any such
breach, Contractor agrees that Company, in addition to such other remedies
which may be available, shall be entitled to specific performance and other
injunctive relief.
18. Governing Law: This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth
of Massachusetts (without reference to the conflicts of laws provisions
thereof). Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this
Agreement shall be commenced only in a court of the Commonwealth of
Massachusetts (or, if appropriate, a federal court located within
Massachusetts), and Company and Contractor each consents to the
jurisdiction of such a court.
19. Entire Agreement: This Agreement supersedes all prior agreements, written
or oral, between Contractor and Company relating to the subject matter of
this Agreement. This Agreement may not be modified, changed, or discharged
in whole or in part, except by an agreement in writing signed by Contractor
and Company. Contractor agrees that any change or changes in the services
to be performed or payment terms after the signing of this Agreement shall
not affect the validity or scope of this Agreement.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
PERSISTENT SYSTEMS PVT. LTD. NETEZZA CORPORATION
By /s/ Xxxxx Xxxxxxxxx By /s/ Xxxxxxxx Xxxxxx
--------------------------------- -------------------------------------
Signature Signature
XXXXX XXXXXXXXX X. X. XXXXXX
Print Name Print Name
MANAGING DIRECTOR CEO
Title Title
JANUARY 24, 2002 1/29/02
Date Date
Phone: x00 (00) 000 0000 Phone: (000) 000-0000
Fax: x00 (00) 000 0000 Fax: (000) 000-0000
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Attachment A
STATEMENT OF WORK
Contractor: Persistent Systems Pvt. Ltd. (PSPL), Pune, India
Company: Netezza Corporation, 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, XXX
Duration of
Project:
Project
Requirements: The exact work statements, deliverables, project plans, the
number of engineers who will work on the project will be
agreed upon by the project-in-charge with the Contractor as
well as Company in writing (email acceptable) from time to
time.
Rate of For services performed through 30 November 2001:
Compensation: US$[**] per person per month for a group size up to [**].
US$[**] per person per month for every additional person
beyond the group size of [**], up to a maximum of [**]
people total.
Total monthly compensation is capped at $[**].
Team size is subject to approval in writing by Company.
For services performed beginning 1 December 2001:
US$[**] per person per month for a group size up to [**].
US$[**] per person per month for every additional person
beyond the group size of [**], up to a maximum of [**]
people total.
Total monthly compensation is capped at $[**].
Team size is subject to approval in writing by Company.
Contractor shall provide [**] personnel on-site at Company
for [**] weeks in each of the[**] beginning 1 December 2001.
The parties may agree in writing to continue this practice
beyond [**]. Company may request additional Contractor
personnel on-site.
Expenses: For services performed through 30 November 2001:
If travel is needed then Company will pay for:
[**].
All non-standard hardware and software purchased by
Contractor upon written permission from Company (email
acceptable) for the execution of work on these projects will
be reimbursed by Company.
For services performed beginning 1 December 2001:
Contractor will pay expenses associated with providing [**]
Contractor personnel on-site at Company for [**] weeks in
each of the [**] beginning 1 December 2001.
Company will pay the following expenses associated with
providing additional Contractor personnel on-site: [**]
All travel must be approved by Company in advance in writing
(email acceptable).
Time of Payment: Net [**] days after the invoice is made by PSPL
Location: 'Xxxxxxxxxx', 000 Xxxxxxxx Xxxxx Xxxx, Xxxx 000000 XXXXX
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Scope of Work: The Scope of Work for this Agreement shall include:
A. Software Development:
1. [**]
2. [**]
3. [**]
4. [**]
B. Quality Assurance:
1. [**]
2. [**]
C. Such other projects and tasks as may be mutually agreed
by the parties
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