EXHIBIT 10.20
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
SMART HANDS SUPPORT SUBCONTRACT AGREEMENT
BETWEEN
HEWLETT-PACKARD LIMITED
AND
NETEZZA CORPORATION
SUPPORT SUBCONTRACT
AGREEMENT
EFFECTIVE DATE: 16TH JULY 2003
BETWEEN:
Hewlett-Packard Limited ("HP"), of Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX00 0XX
AND
Netezza Corporation ("the Customer") of 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 X.X.X.
AGREEMENT NUMBER:
WHEREAS:
Customer hereby appoints HP to provide HP Smart Hands support services ("the
Services") directly to the Customer's customers ("the End-Users") as a
Customers' subcontractor.
The provision of Support by HP is governed by these terms and conditions.
1. DEFINITIONS
1.1 "Agreement" means these terms and conditions and any Exhibits and Schedules
incorporated herein;
1.2 "Exhibit(s)" means documents which describe the terms and conditions for
the provision of specific Support Services;
1.3 "Customer Products" means hardware products which are proprietary to
Customer and supported by HP under the terms of this Agreement.
1.4 "Liability" means, when capitalised, liability in contract, tort,
misrepresentation, restitution, or any other cause of action whatsoever;
1.5 "Nonqualified Products" means hardware and software not supplied or
approved by HP or supported by HP under this Agreement and Products into
which the Customer does not allow HP to incorporate modifications or
updates;
1.6 "Order" means each and every instruction by the Customer to initiate a
contract for the provision of Support Services by HP or to add and/or
delete Products from an existing contract;
1.7 "Order Term" means the period specified in the relevant Schedule to this
Agreement during which Support Services will be provided for the Products;
1.8 "Products" means hardware and software products which are proprietary HP
branded products, supported by HP under a separate contract;
1.9 "Schedule" means the relevant schedule(s) annexed hereto or incorporated
herein;
1.10 "Set-Up Cost" means the initial one-off charge payable to HP irrespective
of the number of End-Users under this Agreement;
1.11 "Support" means hardware maintenance and repair, and other support services
provided by HP;
SUPPORT SUBCONTRACT
AGREEMENT
1.12 "Support Services" means the services to be provided by HP pursuant to this
Agreement as described in the relevant Exhibit(s).
2. CONDITION PRECEDENT
2.1 "Condition Precedent" means where Customer has entered into an Agreement
with End-User for the provision of certain hardware Support Services and
Customer has subcontracted the on-site hardware service to HP under the
terms of this Agreement.
2.2 Pre-Conditions.
2.2.1 This Agreement is subject to the Condition Precedent being satisfied.
2.2.2 If the Condition Precedent is not satisfied on or before 16th July
2003 this Agreement shall determine and be deemed null and void and
without effect and without liability whatsoever on either Party.
2.2.3 Other than "Set-Up Costs" whereby Clause 5.5 will apply any costs or
expenses incurred by either party hereto in anticipation of the
condition precedent being satisfied shall be the sole responsibility
of the party incurring a such expenses and costs.
3. PROVISIONS OF SUPPORT SERVICES
3.1 The Customer may at any time issue an Order for Support Services. All
Orders are subject to acceptance by HP, which acceptance shall not be
unreasonably withheld, conditioned, or delayed. Orders for Services will
not be accepted by HP directly from End-Users under this Agreement or for
Services to be performed outside of the UK.
3.2 HP will provide to the End-User the Support Services during the Order Term
in respect of the Customer Products listed in Schedule(s) in accordance
with the terms and conditions of this Agreement and any relevant
Exhibit(s).
3.3 Where Services are provided directly to the End-User at End-User's Site,
any reference to "Customer" in Exhibits attached hereto shall apply to the
End-User.
3.4 HP shall provide Services to the End-User as a subcontractor to the
Customer only for those services sold to the End-User by Customer and
listed in the Exhibit.
3.5 In performing the subcontracted Services hereunder, HP will act on behalf
of the Customer. Notwithstanding the foregoing, Customer does not authorise
HP to enter into any binding obligations on behalf of Customer or to
represent it has authority to do so.
4. TERM
4.1 This Agreement will commence on the Effective Date specified above in
respect of the original Order and (and without prejudice to Clauses 12.2 or
12.3), will continue for an initial Order Term of one year. Thereafter the
Agreement shall automatically renew for successive one year periods subject
to these terms and conditions and charges and, subject to Clause 4.3, will
end when terminated by either party in accordance with Clause 12.
4.2 During an Order Term the Customer may on 30 days' prior notice to HP place
an Order to add further Customer Products to the original Order and the
charges will be amended. Annual charges for Customer Products added during
any individual twelve month period of an Order Term will normally be
prorated to the end of that period in accordance with this Clause and
charged at the price applicable at the time of the addition.
SUPPORT SUBCONTRACT
AGREEMENT
4.3 Notwithstanding the foregoing or any other provision herein (other than
Clause 12.2 or 12.3 hereof) unless otherwise agreed in writing by HP the
minimum term for any Order is twelve calendar months.
5. PRICES
5.1 Quoted prices are valid for 30 days or such other period indicated on the
quotation.
5.2 Taxes are not included in prices and will be invoiced, if applicable, as
separate items.
5.3 In the event the parties agree to extend this Agreement beyond the Initial
Order Term, Support prices may be changed by HP on the anniversary of the
Effective Date of this Agreement or such other date as HP may notify the
Customer of from time to time for specific Support Services upon 60 days'
written notice.
5.4 Charges for Services or any other periodic Services will be invoiced in
advance. If pre-paid Services are cancelled, the Customer shall receive a
pro-rata refund only for unused pre-paid Support Services beyond the first
three (3) months.
5.5 An initial one-off charge of L[**] Sterling ([**] pounds Sterling) under
this Agreement, excluding VAT will be charged to the Customer to cover HP's
set up costs for the Services.
6. PAYMENT
6.1 Invoices for Support Services will be issued quarterly in advance of the
Support period.
6.2 Charges for services not covered by this Agreement, services performed
outside the specified periods of coverage and travel and per diem expenses
not included in the specified coverage will be invoiced by HP and paid by
the Customer as they are incurred at HP's standard rates.
6.3 Payment is due thirty (30) days from the date of HP's invoice.
6.4 Payment terms are subject to HP credit approval. HP may change credit
approval. HP may change credit or payment terms at any time when, in HP's
opinion, the Customer's financial condition, previous payment record or the
nature of the Customer's relationship with HP so warrants.
6.5 Without prejudice to any rights or remedies it may have, HP may suspend
performance if the Customer fails to pay any sum due, or fails to perform
under this or any other HP agreement, and may terminate performance in
accordance with Clause 12, if after 10 days written notice the failure has
not been cured. HP shall be entitled to interest on the amount due at the
rate of 3% per annum above HSBC Bank base rate ruling from time to time,
calculated from date due and to recover its expenses including legal fees
and costs of collection.
6.6 If services outside the scope of this Agreement are carried out by HP the
Customer will provide HP with a purchase order number in respect thereof in
advance.
6.7 HP will render its invoices to Customer's Accounts Payables Department at
its premises notified to HP from time to time.
7. ELIGIBILITY AND EXCLUSION
7.1 To be eligible for Support, Customer Products must be at current specified
revision levels and, in HP's reasonable opinion, in good operating
condition. HP will charge and the Customer will pay HP standard rates in
effect at the date of the Order to bring non-eligible Customer Products up
to normal operating or environmental conditions, or to bring them to the
current revision level or to investigate the same prior to including them
under this Agreement.
SUPPORT SUBCONTRACT
AGREEMENT
7.2 HP may, in agreement with the Customer, which shall not be unreasonably
withheld, at no additional charge, modify Customer Products to improve
operation and reliability. However if modifications are required as a
result of legal requirements, then HP maintains the right to complete such
modifications without prior approval of the Customer, in consultation with
Customer unless such modifications are required to be made on an emergency
basis.
7.3 Relocation of Customer's Products is the Customer's responsibility and may
result in additional Support charges and modified service response times.
The Customer must give HP 30 days' written notice prior to Customer's
Products being relocated.
7.4 HP does not provide Support for Products or Nonqualified Products under
this Agreement. The Customer is responsible for removing Nonqualified
Products to allow HP to perform Support Services. If Support Services are
made more difficult because of Nonqualified Products, HP will charge the
Customer for the extra work at HP's standard rates. HP may provide Support
Services for Products and Nonqualified Products when approved by HP in
writing. HP may provide Support for Customer Products when Customer allows
HP to perform modifications if requested by HP under Clause 7.2 above.
7.5 Support does not cover any damage or failure caused by:
7.5.1 use of non-manufacturer recommended media and supplies or use of
items not designated for use with Customer Products; or
7.5.2 site conditions that do not conform to HP's site specifications; or
7.5.3 neglect, improper use, fire or water damage, electrical disturbances,
transportation by the Customer, work or modification by persons other
than HP employees or subcontractors, or other causes beyond HP's
control. If Support is required due to any of the above causes, HP may
provide such Support at HP's standard rates; or
7.5.4 the inability of any products (other than products manufactured by HP
included within the definition of Products) in Customer's information
technology and business environment (i) to process, provide or receive
correctly date data (i.e., representations for month, day and year),
or (ii) to exchange properly date data with Products supplied by HP.
7.6 HP may cover obsolete Customer Products that are beyond their specified
support period on a reasonable efforts basis at HP's standard rates.
8. CUSTOMER'S RESPONSIBILITIES
8.1 The Customer will procure that the End-User will supply HP with such
operating supplies and consumables as the End-User would use during normal
operation of the Customer's Products.
8.2 The Customer will procure that the End-User is responsible for maintaining
full security and back-up procedures and a procedure external to the
Products to reconstruct lost or altered End-User files, data or programs.
In addition to the foregoing the Customer will procure that the End-User is
responsible for maintaining End-User information resident on any End-User
database or file and to take adequate steps to ensure such information is
secure and backed-up.
8.3 The Customer will procure that the End-User will have a representative
present when HP provides Support Services at the End-User's site.
8.4 The Customer will notify HP if Customer Products are being used in an
environment which poses a potential health hazard to HP employees or
subcontractors. HP may decline to support such Customer Products and/or
require the End-User to maintain such Products itself under Customer
supervision.
SUPPORT SUBCONTRACT
AGREEMENT
8.5 Customer will establish it's own support services agreements with End-Users
to cover the Services delivered by HP, and will administer the same.
Customer will ensure that such agreements contain like provisions for the
granting of any right to HP-Supplied software and documentation,
derivatives and updates thereof (if applicable) as are contained in this
Agreement and attachments or Exhibits hereto.
8.6 Providing that there is no breach of any of its obligations of
confidentiality, Customer will supply such End-User details (other than
price or other commercially sensitive information to HP) which HP in it's
reasonable opinion considers reasonably necessary for the delivery of the
Services in accordance with the Schedules or to protect any rights which HP
has reserved, provided always that the confidentiality agreement between
Customer and End-User allows Customer to disclose information to a
subcontractor on a need to know basis. HP warrants that it will keep this
information confidential.
8.7 Customer is primarily responsible for all commitments it makes to its
End-User(s) and shall indemnify HP against any loss HP may incur arising
from Customer's misrepresentation of HP's Support obligations set out
herein.
8.8 Customer will ensure that it has the capability to provide and will provide
first level support during the Coverage Hours associated with subcontracted
Services provided by HP hereunder, as specified in the relevant Exhibit.
Customer will perform technical screening and telephone call management for
all Services required hereunder to a standard reasonably required by HP.
Specific call screening processes for each Service subcontracted hereunder
are detailed in separate Schedules attached or subsequently added to this
Agreement.
8.9 The relationship between HP and Customer shall be that of independent
contractors. Neither party shall be or be deemed to be an employee,
representative, agent, partner or joint venturer of the other party, and
neither party shall have the right, power or authority to act for,
represent, commit or bind the other party for any purpose. Customer shall
not use any HP trade name, trademark or logo without obtaining HP's prior
written consent.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Subject to the following provisions of this Clause 9, HP will defend or
settle any claim against the Customer that the normal use or possession of
any replacement Product, spare part or software update provided by HP
during Support Services infringes a patent, utility model, design right,
copyright, trade secret, mask work or trademark in the United Kingdom
provided that the Customer:
9.1.1 makes no statement prejudicial to HP;
9.1.2 promptly notifies HP in writing of the claim; and
9.1.3 co-operates with HP in, and grants HP sole authority to control the
defence and any related settlement of any such claim.
9.2 HP will pay infringement claim defence costs, settlement amounts and court
awarded damages. If such a claim is made or appears likely to be made, HP
may procure the right for the Customer to continue using the replacement
Product, spare part or software update as the case may be or may replace
it. If use thereof is enjoined by a court or HP determines that none of
these alternatives is reasonably available, HP will take back the relevant
item and refund its depreciated value.
9.3 HP has no obligation for any claim of infringement arising from:
9.3.1 HP's compliance with any designs, specifications or instructions of
the Customer;
9.3.2 modification of the spare part or software update by the Customer or
a third party;
SUPPORT SUBCONTRACT
AGREEMENT
9.3.3 use of the spare part or software update in a way not specified by
HP; or
9.3.4 use of the spare part or software update with products not supplied
by HP; or
9.3.5 non-HP spare parts and/or non-HP software updates provided hereunder.
9.4 These terms state HP's entire liability for claims of intellectual property
infringement.
10. WARRANTY
10.1 HP warrants that Support Services will be carried out using all reasonable
skill and care in default of which HP will reperform such Support Services
at its own cost.
10.2 HP's liability under this Clause 10 shall be in lieu of all other terms and
conditions and warranties implied by law as to the description, quality or
fitness for any particular purpose of the replacement parts and/or software
updates and to the fullest extent permissible by law all other terms,
warranties or conditions expressed or implied by statute or otherwise are
excluded.
11. LIMITATION OF REMEDIES AND LIABILITY
11.1 HP will not be liable for performance delays or for non-performance due to
causes beyond its reasonable control.
11.2 The Customer is solely liable if Support Services purchased by the Customer
are used for the planning, construction, maintenance, or direct operation
of a nuclear facility. The Customer will indemnify and hold HP harmless
from all loss, damage, expense or liability in connection with such use.
11.3 HP's Liability arising out of or in connection with this Agreement whether
in contract or tort (including in each case negligence) or otherwise
howsoever shall be limited to:
11.3.1 direct damages to or loss of tangible property, caused solely by the
negligence of HP up to a maximum of L1 million for any one event or
series of connected events;
11.3.2 the re-performance of any defective Support Services under Clause
10.1;
11.3.3 in respect of infringement of intellectual property rights, the
obligations and payments set out in Clause 9.
11.4 In no event shall HP or its affiliates, subcontractors or suppliers be
under any Liability for:
11.4.1 damages for the loss of data and/or undertaking the restoration of
data or software restoration;
11.4.2 any damages relating to the procurement by the Customer of any
substitute goods or services (i.e., "cost of cover"); or
11.4.3 loss of actual or anticipated profits, loss of goodwill, loss of
business, loss of anticipated savings, loss of revenue or of the use
of money, loss of data, or, without limitation, for special, indirect
or consequential loss or damage, in respect of any Liability in
respect of any of the matters set out in clauses 11.6.3.1 and 11.6.3.2
and whether or not any such loss is foreseeable, known or foreseen or
otherwise.
11.5 The remedies in this Agreement are Customer's sole and exclusive remedies.
11.6 Notwithstanding anything in this Agreement;
SUPPORT SUBCONTRACT
AGREEMENT
11.6.1 The parties' Liability for death or personal injury caused by
negligence (as such term is defined by the Unfair Contract Terms Act
1977) is unlimited.
11.6.2 Each party's Liability for fraudulent misrepresentation and for
misrepresentation as to a matter fundamental to the such party's
ability to perform this Agreement is unlimited.
11.6.3 Each party's Liability to the other (save in respect of any
Liability referred to in clauses 11.3.1, 11.6.1, 11.6.2 and 11.6.4) in
respect of:
11.6.3.1 the performance, non-performance or purported performance of
this Agreement, any Order or any Support Services; or
11.6.3.2 otherwise in relation to this Agreement or the entering into
or performance of this Agreement, any Order or any Support
Services
shall not exceed the maximum of the related Support Services Charges
payable by the Customer during the 12 months immediately preceding the
act or omission giving rise to the Liability (or, if the relevant
Liability arises within one year after the Effective Date, an amount
equal to the related Support Services Charges likely to be payable by
the Customer in the first 12 months of this Agreement). The limitation
of Liability under this clause 11.6.3 has effect in relation both to
any Liability expressly provided for under this Agreement and to any
Liability arising by reason of the invalidity or unenforceability of
any term of this Agreement.
11.6.4 Nothing in this Agreement affects the statutory rights of any
consumer.
12. TERMINATION
12.1 Subject always to Clause 4.3, the Customer may cancel any Order or
terminate any Exhibit(s) or this Agreement upon 30 days' written notice to
HP.
12.2 HP may cancel any Order or terminate any Exhibit(s) or this Agreement upon
60 days' written notice to the Customer at any time for any reason
(including but not limited to circumstances where the relevant Customer
Products have become obsolete or have been modified, or where a third party
maintainer has ceased to provide the necessary services, or if the Customer
fails to supply to HP full and accurate information regarding those
Customer Products being supported hereunder and/or those otherwise
requiring maintenance services) provided that HP shall comply with any
restriction on such right of cancellation or termination contained in this
Agreement or in any Exhibit.
12.3 Either party may terminate any Order or terminate any Exhibit(s) or this
Agreement forthwith on written notice to the other party at any time if:
12.3.1 the other party fails to perform or observe any provision on its
part of this Agreement; or
12.3.2 the other party becomes insolvent, or is unable to pay its debts
when due, or ceases to carry on business or a substantial part
thereof, or has a receiver (administrative or otherwise) appointed
over any part of its assets, or commits an act of bankruptcy or is
adjudicated bankrupt, or enters into liquidation whether compulsory or
voluntary (except for the purposes of an amalgamation or
reconstruction), or makes an arrangement with its creditors, or has
its assets assigned or in the case of the Customer only is engaged in
a merger, or amalgamation, or a material change of control resulting
in the controlling party being an organisation that HP is unable or at
HP's discretion no longer wishes to contract with.
SUPPORT SUBCONTRACT
AGREEMENT
13. RESPONSE TIMES
13.1 Response times indicated in Exhibits attached or subsequently added to this
Agreement are measured from the time a call is received by HP. HP will not
be held responsible for delays resulting from Customer call management and
trouble shooting processes.
13.2 HP shall not be responsible for delay or failure in responding resulting
from causes beyond its reasonable control.
14. HP'S OBLIGATIONS
14.1 HP will act on behalf of Customer when providing Services to Customer's
End-Users.
14.2 HP will provide Customer with a current price list and such support
services literature as HP deems necessary for Customer to promote Services
hereunder.
14.3 HP shall use reasonable endeavours to comply with all reasonable End-User
safety requirements while working at an End-User Site, providing HP has
been notified in writing in advance of the End-User safety requirements.
15. CONFIDENTIALITY
15.1 Each party will treat as confidential all information obtained from the
other party under or in connection with this Agreement which is designated
and marked as confidential by the other party or which by its nature is
clearly confidential (the "Confidential Information"). For the purposes of
this Agreement, all information including but not limited to, HP's or
Customer's technology, customers, business plans, and finances shall be
deemed Confidential Information. The receiving party will not disclose such
Confidential Information to any other person (except to those
subcontractors, suppliers or employees who need to know it), or use such
Confidential Information for purposes other than the provision of Support
Services under this Agreement (the "Purpose") entered into by the parties,
without the other parties prior written consent.
15.2 Clause 15.1 above will not extend to information that:
15.2.1 was in the possession of the receiving party (with full rights to
disclosure) before receiving it; or
15.2.2 is already or becomes public knowledge (otherwise than as a result
of a breach of this clause); or
15.2.3 is independently ascertained or developed by the receiving party
without access to or use of the Confidential Information;
15.2.4 is received from another source without a duty of confidentiality;
or
15.2.5 is required to be disclosed by law or court of competent
jurisdiction.
15.3 Each party will ensure that all persons to whom it discloses any
Confidential Information of the other party is made aware prior to
disclosure of the Confidential Information and that they owe a duty of
confidence to the other party. These obligations of confidentiality will
survive any termination of this Agreement for a period of two (2) years
thereafter.
15.4 A party receiving the Confidential Information shall use the same degree of
care, but in any case no less than a reasonable degree of care, to prevent
the unauthorised use, dissemination or publications thereof, as it uses to
protect its own confidential information of a similar nature.
SUPPORT SUBCONTRACT
AGREEMENT
16. GENERAL
16.1 HP copyrighted materials may not be copied except for archive purposes, to
replace a defective copy or for program error verification unless otherwise
agreed in writing by HP.
16.2 Any term of this Agreement which is held to be invalid will be deleted, but
the remainder of these terms will not be affected.
16.3 Neither party may assign or otherwise transfer (in whole or in part) any
rights or obligations without the prior written consent of the other party,
which consent shall not be unreasonably withheld, conditioned or delayed,
save that HP may (a) subcontract the performance of any of its obligations
(in whole or in part) to a third party or (b) assign or transfer this
Agreement to another Hewlett-Packard entity at any time subject to written
notice. However, should the Customer not wish HP to subcontract any work
hereunder to a specific company or subcontractor, providing that the
Customer has notified HP in writing and with as much notice as possible,
then HP shall endeavour to abide by the Customers' wishes as far as is
reasonably practical.
16.4 No government procurement regulations or contract clauses are binding on
either party unless required by law or mutually agreed.
16.5 Any Customer who exports, re-exports or imports spare parts, technology or
technical data obtained as part of this Agreement assumes responsibility
for complying with applicable laws and regulations and for obtaining
required export and import authorisations. HP may suspend performance if
the Customer is in violation of applicable regulations.
16.6 This Agreement is governed by the laws of England and Wales and the parties
hereby submit to the exclusive jurisdiction of the courts of England and
Wales.
16.7 The provisions of Clauses 9 and 11 and this Clause will survive the
termination of this Agreement.
16.8 This Agreement and the terms of any relevant Exhibit(s) constitute the
entire agreement between HP and the Customer relating to transactions
hereunder and supersede any previous communications, representations or
additional or different terms and conditions. Neither party has any right
of action against the other in respect of any untrue statement (written or
oral) made to it in respect of this Agreement, any Order or any Support
Services, or of the entering into or making thereof.
16.9 The Customer's additional or different terms and conditions will not apply.
The Customer's purchase of Support Services will constitute the Customer's
acceptance of these terms and conditions which may not be changed (subject
to Clause 16.11 and 16.12 below) except by an amendment signed by an
authorised representative of each party.
16.10 All notices which are required to be given hereunder shall be in writing
and shall be sent to the address of the recipient set out in this Agreement
or such other address in England as the recipient may designate by notice
given in accordance with the provisions of this Clause. Any such notice may
be delivered personally or by first class pre-paid letter or facsimile
transmission and shall be deemed to have been served if by hand when
delivered, if by first class post 48 hours after posting and if by
facsimile transmission when dispatched.
16.11 The Exhibits listed in this Agreement are incorporated by reference into
this Agreement. HP may offer new Exhibit(s) relating to additional Support
Services by forwarding a copy to the Customer. Any Order for Support will
constitute acceptance of the terms of such Exhibit(s) and this Agreement
and the terms of such Exhibit(s) are incorporated by reference into this
Agreement.
16.12 The parties agree that if in HP's reasonable opinion and following
discussions with Customer HP wishes to alter the terms and conditions of
this Agreement and/or any Exhibit(s) in respect of updating the Agreement
SUPPORT SUBCONTRACT
AGREEMENT
to reflect latest legislation or HP service deliverables, it may do so upon
giving sixty (60) day's prior written notice to the Customer. The revised
terms and conditions shall apply to any new Order for Support placed by the
Customer after the expiry of the 60 days notice period. These terms and
conditions shall continue to apply to existing Orders.
16.13 No person other than a party to this Agreement shall be entitled to
enforce any term of it save that where an agreement is entered into
pursuant to which any rights or obligations contained in this Agreement are
permissibly assigned or novated to a third party, nothing in this Clause
shall, of itself, operate to prevent the assignee from taking the benefit
of, and enforcing, any rights so assigned.
16.14 Neither the Customer not HP shall hire or knowingly solicit the employment
of any employees of the Customer or HP to perform Smart Hands Support under
this Agreement of for any other purpose during the period of this
Agreement.
HP SUPPORT SUBCONTRACT AGREEMENT EXHIBITS ATTACHED HERETO:-
SMART HANDS EXHIBIT, VERSION A.01
END USER(S) STATEMENTS OF WORK
CUSTOMER: HEWLETT-PACKARD LIMITED
(Print Name) (Print Name)
X.X. Xxxxxxxx Xx. [Illegible]
SIGNATURE: SIGNATURE:
/s/ X.X. Xxxxxxxx Xx. /s/ [Illegible]
------------------------------------- ----------------------------------------
SUPPORT SUBCONTRACT
AGREEMENT
STATEMENT OF WORK - A
NAME OF CUSTOMER'S END-USER: XXXX
END-USER REFERENCE ID: YYYY
System ID: ____
Site ID: ____
DEFINITION OF SERVICES: As attached in the Smart Hands Service
Exhibit, vA.01
LIST OF SUPPORTED CUSTOMER PRODUCTS [to be completed]
COVERAGE HOURS [Normal Working Hours/24x7]
RESPONSE TIME [_____]
MEETING FREQUENCY [Quarterly with HP]
ANNUAL CHARGES PAYABLE TO HP L ____ excl VAT (Sterling/Dollars)
HP TO INVOICE QUARTERLY IN ADVANCE
TERM OF AGREEMENT twelve calendar months from [insert date]
DESIGNATED HP OFFICE IS: Hewlett-Packard Ltd, Xxxx Xxxx,
Xxxxxxxxx, XX00 0XX
STANDARD RATES: ________
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
NETEZZA CORPORATION HEWLETT-PACKARD LIMITED
Signature: Signature:
--------------------------- -----------------------------
Name: Name:
------------------------------- ----------------------------------
Position: Position:
---------------------------- ------------------------------
Date: Date:
------------------------------- ----------------------------------
SUPPORT SUBCONTRACT AGREEMENT
SMART HANDS SUPPORT SERVICES
The provision of Smart Hands On-Site Support is governed by the terms of this
Exhibit and the Support Subcontract Agreement ("SSA").
Customer provides a portfolio of support services to its End-Users and has a
requirement to subcontract certain on-site hardware services to HP for Customers
Products as described herein.
1. DEFINITIONS
In this Exhibit, terms defined in the Agreement shall have the same meaning when
used in this Exhibit and the following expressions shall have the corresponding
meanings:
1.1 "Agreement" means the SSA, this Exhibit and any other relevant Exhibits(s)
including in each case any Schedule(s) thereto;
1.2 "Charges" means the charges applicable to each End User's Statement of Work
under this Agreement;
1.3 "Coverage Hours" means the hours during which Smart Hands Support is
available as set out on the applicable End-Users Statement of Work as a
schedule to this Agreement;
1.4 "End-User's Site" means the End-User's site(s) as listed in the Statement
of Work to this Agreement at which the Customer Products are located;
1.5 "Hardware Response Time" means the response time during the relevant
Coverage Hours in respect of the Smart Hands Support as set out on the
applicable End-Users Statement of Work to this Agreement;
1.6 "IT Resource Centre" means HP's response centre at Bracknell or such other
location as HP shall notify the Customer from time to time;
1.7 "Normal Working Hours" means the hours of 9am to 5pm (GMT) Monday to Friday
excluding HP and public holidays;
1.8 "Quarter" means three (3) calendar months;
1.9 "Smart Hands Support" means the level of support in respect of the Customer
Products as set out in each End-User's Statement of Work, and more
particularly described in Clause 2 and Diagram 1 hereunder.
2. SERVICE DESCRIPTION
HP will provide the Smart Hands Support during the Coverage Hours in accordance
with the terms and conditions of this Agreement. Smart Hands Support includes
support of only the Customers Products at End-User's site.
2.1 Provision of Smart Hands Support
2.1.1 Customer will supply HP with all necessary hardware parts to maintain
the Customer Products in normal operating condition in accordance with
the terms of this Agreement. Replacement parts used by HP in the
provision of Smart Hands Support will be new or equivalent to new and
all replaced parts will become the property of Customer.
2.1.2 On receipt of a call from the Customer at the IT Resource Centre
during the Coverage Hours HP will despatch an engineer to the
End-User's site accordingly within the Hardware Response Time.
Following receipt of a call as aforesaid, if the number of hours
comprised in the Hardware Response Time exceeds the number of hours
remaining of the Coverage Hours, then the balance will be carried over
to the Coverage Hours of the next working day and HP will despatch an
engineer within this latter period.
SUPPORT SUBCONTRACT AGREEMENT
SMART HANDS SUPPORT SERVICES
If a call is received by HP outside of the Coverage Hours the call
will be logged by the IT Resource Centre and HP will respond within
the Coverage Hours on the next working day within the Hardware
Response Time.
If HP is unable to respond within the Hardware Response Time the
matter will be escalated within HP by HP in accordance with the
escalation procedure in force from time to time.
2.1.3 Upon arrival at End-User's site, HP will call Customers IT Helpdesk
for further instructions before attempting any repairs.
2.1.4 HP shall continue to provide Hardware Support as long as progress is
being made until the Customer Products are operational. If HP
determines additional parts are required, then Smart Hands Support
will be interrupted and resumed once such parts are available. If the
defective part is not stocked on-site the Customer will arrange for it
to be shipped to the End-User via premium air freight. When the part
arrives an HP engineer will be dispatched to install the replacement
part.
3. ADDITIONAL SMART HANDS SERVICE EXCLUSIONS
3.1 All other End-User hardware, software or network or Products are expressly
excluded from Smart Hands Support under this Agreement.
4. CHARGES
4.1 Customer will pay HP a monthly retainer per system in accordance with the
amounts set out in Table 1 below. This is based on a maximum number of five
(5) fault calls per Quarter for each system covered in an End-User
Statement of Work (hereinafter "Maximum Call Volume").
TABLE 1
COST PER MONTH L
(GBP) EXCL VAT
----------------
Low Level Systems L[**]
(e.g. NPS8100/8200)
High Level Systems L[**]
(e.g. NPS8400)
4.2 In the event the Customer exceeds the Maximum Call Volume in any one
Quarter, or places calls for engineering modifications, including firmware
upgrades and revision changes, such calls will be chargeable to Customer at
HP's then current rates.
4.3 The Customer is responsible for all telecommunication charges associated
with using any electronic support services when calls are initiated by the
Customer.
5. CUSTOMER RESPONSIBILITIES
5.1 All areas of direct interface with End-Users such as basic help desk, call
ticket system, spare parts ordering/tracking, and 24x7 first line contact,
including bug fixes are the Customer's responsibility.
5.2 The Customer will ensure it has suitably qualified and trained personnel to
advise the HP engineer at the End-User's site and give the HP engineer
instructions to remedy the End-User's problem.
SUPPORT SUBCONTRACT AGREEMENT
SMART HANDS SUPPORT SERVICES
5.3 If the call is for a defective part the Customer engineer will walk the
End-User through the replacement process and then reorder a new site spare.
If the part is not End-User replaceable the engineer will call HP and
dispatch an engineer to the site.
5.4 The Customer will arrange for the replacement Customer Product part(s) to
be shipped to End-User's site at Customers expense.
5.5 The Customer shall be responsible for all costs associated with the host
processor warranty upgrade.
5.6 The Customer shall procure that the End-User shall:
5.6.1 provide a safe working area at the End-User's site in close proximity
to the Customer Products, which working area is subject to approval by
HP. The working area must include appropriate shelves, racks and
workbenches, adequate power and lighting, access to a telephone, and
such other facilities, as HP shall reasonably require;
5.6.2 locate all Customer Products to be repaired during a scheduled visit
at the designated working area before HP arrives at the End-User's
site;
5.6.3 provide access to and use of all information, internal resources, and
facilities reasonably required by HP to carry out its obligations
hereunder.
5.7 The Customer shall provide HP with an open purchase order in advance of the
Smart Hands Service commencement together with details of the Customer's
personnel authorised to request such services.
6. HP OBLIGATIONS
6.1 The HP engineers requires no proprietary training on Customer Products
(hardware), HP's only responsibility is to replace a specific hardware
assembly under the direct telephone supervision of a Customer support
engineer. Written assembly removal and replacement instructions will be
made available to each HP engineer that has undertaken the Netezza Overview
training.
7. ADDITIONAL PROVISIONS
7.1 Notwithstanding any appointment as a Customer's subcontractor, the Customer
acknowledges that HP accepts no liability for the performance or otherwise
of any third party (including the Customer), their products or services. HP
accepts no liability whatsoever in respect of claims made against HP or the
Customer caused or contributed to by HP's proper discharge of its duties as
the Customer's subcontractor hereunder or the Customer's failure to perform
its obligations hereunder between the Customer and any End-User(s)
7.2 The Customer agrees to indemnify and keep HP indemnified against all
liabilities whatsoever in connection with any claim against HP whatsoever
arising out of HP's proper discharge of its duties as the Customer's
subcontractor hereunder or the Customer's failure to perform its
obligations hereunder or under any service contracts between the Customer
and its End-Users. This indemnity shall survive the termination of this
Exhibit.
SUPPORT SUBCONTRACT AGREEMENT
SMART HANDS SUPPORT SERVICES
DIAGRAM 1. SMART HANDS SUPPORT CALL FLOW
(FLOW CHART)
[**]
