Professional Services Agreement

Professional Services Agreement

This Professional Services Agreement (this “Agreement") is entered into by and between ClickHouse, Inc., a Delaware corporation, with a business address of 650 Castro St., Suite 120 #92426, Mountain View CA 94041 (“ClickHouse”) and the person or entity (“Customer”) that has executed an order form (“Order Form”) for the purchase of professional services from ClickHouse, and governs the provision of such professional services to Customer by ClickHouse. Upon execution of such Order Form by ClickHouse, the Order Form is incorporated by reference into, forms part of, and shall be governed by the terms and conditions of this Agreement.

1. Definitions

The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.

1.1 "Affiliate” means an entity that controls, is controlled by or which is under common control with a party to this Agreement.

1.2 "Consultant” means a member of ClickHouse’s professional services staff.

1.3 "Customer” means the Customer named on the applicable Order Form, and its Affiliates. Customer agrees to be responsible to ClickHouse for any costs or damages resulting from an act or omission by any of its Affiliates that constitutes a breach of this Agreement.

1.4 "Fees” means the fees to be paid by Customer to ClickHouse for Service Packages.

1.5 "Order Form” means a ClickHouse order form pursuant to which Customer may order Services from ClickHouse.

1.6 "Services” means professional services to be provided or provided by ClickHouse to Customer under this Agreement, as set forth on an applicable Order Form.

2. Services

2.1 Order Forms.

(a). Customer may order Services by executing an Order Form, which upon execution by ClickHouse and Customer will become part of and subject to this Agreement. Each Order Form will set forth the Services being purchased and the applicable Fees.

(b). Order Forms are not subject to cancellation. Customer agrees that it will have a period of one (1) year from the date of execution of an applicable Order Form to consume the Services set forth on such Order Form. Upon the expiration of such one (1) year period, ClickHouse will not be obligated to provide such Services, or provide a refund of any Fees paid under such Order Form.

2.2 Scheduling and Rescheduling.

(a). Services may be scheduled at the time of purchase, or at a later date, through contacting the ClickHouse professional services group, provided that Services to be provided at Customer’s location must be scheduled in minimum increments of one (1) day, and Services to be provided remotely must be scheduled in minimum increments of two (2) hours.

(b). Rescheduling of Services must be done in writing. There is a $3,000 rescheduling fee if Services are rescheduled less than fifteen (15) days prior to the scheduled commencement of Services, and Customer shall reimburse ClickHouse for any non-refundable travel expenses that have been incurred by ClickHouse prior to such rescheduling.

2.3 Performance of Services. Subject to the payment by Customer to ClickHouse of applicable Fees and the terms and conditions of this Agreement, ClickHouse agrees to perform the Services.

2.4 Personnel. ClickHouse reserves the right, at its discretion, to assign personnel, and to use and assign personnel from ClickHouse Affiliates, to perform Services.

2.5 Customer Policies. When Consultants are performing Services at a Customer location, ClickHouse shall procure that the Consultants conduct themselves in accordance with the standard health, safety and security policies of Customer applicable to its staff and/or visitors generally, and which are provided to ClickHouse in writing in advance. Customer agrees to provide written notice to ClickHouse of any applicable non-standard policies (for example, the requirement of security clearances) in advance of entering into an Order Form.

2.6 Customer Obligations.

(a). Access, Information, Materials and Cooperation. Customer agrees to provide ClickHouse with such cooperation, materials, information, access and support which ClickHouse deems to be reasonably required to allow ClickHouse to successfully provide the Services, including, without limitation, secure access and methods for remote access to Customer’s systems. Customer understands and agrees that ClickHouse’s obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.

(b). Workplace Standards and Hours. Customer agrees to ensure the Consultants performing Services at a Customer location are provided reasonable working conditions and not required to work unreasonable hours. Without limiting the generality of the foregoing, Customer shall provide a safe and adequate work space and environment, with reasonable lighting and access to appropriate resources and facilities, and Customer shall not, without the prior written consent of ClickHouse: (i) require a Consultant to work more than five (5) consecutive days without a day off; (ii) require a Consultant to work more than five (5) consecutive days without the opportunity to travel to their location of residence; (iii) require a Consultant to work more than ten (10) hours in any one day; or (iv) require a Consultant to work between the hours of 12:00 am and 6:00 am, local time. In addition, Customer shall ensure that Consultants are granted at least 1 hour for a meal for every ten (10) hours worked, and one (1) fifteen (15) minute break every four (4) hours worked.

(c). Out of Scope Services and Items. ClickHouse shall not be responsible for any services or items that are not expressly included in the applicable Services, which shall be the responsibility of Customer.

3. Ownership of Work Product and Other Materials

3.1 Work Product. In the course of performing Services, ClickHouse may create software or other works of authorship (collectively “Work Product”). Subject to Customer’s ownership interest in, and ClickHouse’s obligations with respect to, Customer’s Confidential Information, ClickHouse shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Services (“Work Product Deliverable”), ClickHouse hereby grants to Customer a royalty-free, perpetual, worldwide license, without the right to grant or authorize sublicenses, to use such Work Product Deliverable solely for Customer’s own internal business purposes. Customer may allow its third party service providers to exercise the foregoing rights on Customer’s behalf. Customer may not distribute or otherwise transfer such Work Product Deliverable to any third party. Nothing in this Agreement shall be deemed to prohibit ClickHouse from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services.

3.2 Other Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any other materials provided by ClickHouse to Customer in connection with the provision to Customer of Services (“Materials”), other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by ClickHouse to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to ClickHouse. In particular and without limitation, Materials may not be copied electronically or otherwise (except for purposes of internal distribution within Customer’s organization and for archival purposes), modified including translated, re-distributed, disclosed to third parties (other than Customer Affiliates and third party providers of services to Customer that do not compete with the Services), lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All ClickHouse trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any ClickHouse trademarks without ClickHouse’s express written authorization.

3.3 Suggestions. Subject to the obligations of the parties set forth in Section 6 of this Agreement, each party shall be free to use for any purpose any suggestions and/or feedback (“Suggestions”) provided to it by the other party regarding such party’s products and/or services, without the obligation to account to the party providing such Suggestions.

4. Fees and Invoices, Payment and Taxes

4.1 Fees. Unless otherwise expressly specified in the applicable Order Form, Fees for Services shall be for a fixed amount and set forth in the applicable Order Form, and Customer agrees to pay such Fees to ClickHouse in accordance with the terms and conditions set forth herein.

4.2 Invoices and Payment. ClickHouse will invoice Customer for Fees upon execution of an applicable Order Form. Unless otherwise specified on an Order Form, all invoices will be paid in U.S dollars, are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. All monetary amounts are specified and shall be paid in the lawful currency of the United States of America. Customer shall pay all amounts due under this Agreement to ClickHouse at the address set forth herein or such other location as ClickHouse designates in writing. Any amount not paid when due will bear interest at the rate of one percent (1%) per month or, the maximum rate permitted by law, whichever is less, determined and compounded on a daily basis from the date due until the date paid.

4.3 Taxes. All amounts payable by Customer to ClickHouse under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs; provided, however, that Customer shall have no liability for any net income, net worth or franchise taxes assessed on ClickHouse by the United States or any state thereof. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to ClickHouse, then the amount of the payment to ClickHouse shall be automatically increased to totally offset such tax, so that the amount actually remitted to ClickHouse, net of all taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish ClickHouse with the official receipt of payment of these taxes to the appropriate taxing authority. Customer will pay all other taxes, levies or similar government charges or provide ClickHouse with a certificate of exemption acceptable to the taxing authority.

5. Term and Termination

5.1 Term. Unless earlier terminated in accordance with Section 5.2, this Agreement shall commence on the date of execution by the second party to sign the applicable Order Form (“Effective Date”), and have a term which expires upon the earlier of (i) completion by ClickHouse of its Services obligation(s) set forth in the applicable Order Form, or (ii) one year from the Effective Date (as applicable, the “Term”).

5.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material breach by the other party, if such party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching party.

5.3 Survival. All payment obligations under Section 4, plus Sections 3, 5.3, 6, 7, 8 9 and 10 of this Agreement shall survive any termination or expiration of this Agreement.

6. Confidentiality

6.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature ("Confidential Information"). Confidential Information includes, all communications concerning ClickHouse’s or Customer’s business and marketing strategies including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with ClickHouse software, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.

6.2 Non-use and Non-disclosure. The parties shall at all times, both during the term of this Agreement and thereafter keep in trust and confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties without the other party’s prior written consent.

6.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without use of the Confidential Information.

6.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, accountants, attorneys and parent organizations pursuant to the terms of a non-disclosure or confidentiality agreement, or to potential investors.

6.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order only if such party: (i) gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.

7. Warranties and Remedies

7.1 Services Warranty and Remedy. ClickHouse warrants that during the Term it will perform the Services in a workmanlike manner consistent with generally accepted industry standards. In the event of a breach of the foregoing warranty, ClickHouse’s sole obligation, and Customer’s exclusive remedy shall be for ClickHouse to re-perform the applicable Services.

7.2 Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CLICKHOUSE MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE MATERIALS, SERVICES OR ANY WORK PRODUCT DELIVERABLES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLICKHOUSE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO THE MATERIALS, SERVICES AND WORK PRODUCT DELIVERABLES PROVIDED BY CLICKHOUSE HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING.

8. Indemnification

Each party (“Indemnitor”) shall indemnify, defend and hold the other party and its directors, officers, employees, agents and independent contractors (“Indemnitee”) harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages, expenses (including attorneys’ fees) and costs (collectively, “Claims”), made against an Indemnitee by a third party for (i) personal injury or tangible property damage to the extent arising solely from any gross negligence or reckless act, or any intentional misconduct of the Indemnitor, or its directors, officers, employees, agents or independent contractors in the performance of this Agreement or (ii) any violation of any laws, statutes or governmental regulation directly applicable to such party’s performance under this Agreement. The indemnification obligations of the parties in this Section 8 are contingent upon: (1) the Indemnitee promptly notifying the Indemnitor in writing of any claim which may give rise to a Claim for indemnification hereunder; (2) the Indemnitor being allowed to control the defense and settlement of such Claim; and (3) the Indemnitee cooperating with all reasonable requests of the Indemnitor (at Indemnitor’s expense) in defending or settling a Claim. The Indemnitee shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing.

9. Limitation of Liability

9.1 Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR CLICKHOUSE BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Damages Cap. IN NO EVENT SHALL CLICKHOUSE’S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY CLICKHOUSE UNDER THIS AGREEMENT FOR THE SPECIFIC SERVICES GIVING RISE TO SUCH LIABILITY.

9.3 CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

10. Miscellaneous

10.1 Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning party’s assets. Any assignment in violation of this Section 10.1 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns.

10.2 Customer Identification. Customer consents to ClickHouse’s identification of Customer as a user of the Services, as applicable, on its website, through a press release issued by ClickHouse and in other promotion materials.

10.3 Fees. In any judicial proceeding between Customer and ClickHouse arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.

10.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party’s reasonable control.

10.5 Governing Law, Jurisdiction and Venue.

(a). Customers in California. If Customer is located in California (as determined by the Customer address on the cover page to this Agreement), this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.

(b). Customers Outside of California. If Customer is located anywhere other than California (as determined by the Customer address on the cover page to this Agreement), this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.

(c). All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.

10.6 Non-Solicitation. During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit, nor approach in any way, any of ClickHouse’s employees or contract staff with a view to (i) offering such persons, employment, (ii) soliciting services from them on their own account, (iii) encouraging them to provide their services to a third party rather than ClickHouse, or (iv) offering to them the opportunity to perform services colourably similar to the Services.

10.7 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified below the signatures on this Agreement. Either party may from time to time change its address for notices under this Section 10.7 by giving the other party notice of the change in accordance with this Section 10.7.

10.8 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.

10.9 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.

10.10 Entire Agreement. This Agreement, together with the applicable Order Form executed by the parties, and any other document incorporated by reference herein, constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Customer’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and ClickHouse’s performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of ClickHouse and Customer by their duly authorized representatives.

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