Exhibit 10.21
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
September 13, 2002
Netezza Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Compaq Computer Corporation, a wholly owned subsidiary of Hewlett-Packard
Company ("Compaq") is pleased to provide this Letter Agreement ("Agreement") for
delivery of time and materials services ("Services"). Upon acceptance by Xxxxxxx
of the following terms, Compaq will provide the time and materials services
outlined below once a contract for specific equipment and locations is signed.
SERVICES
The time and materials services of Compaq's Customer Support organization shall
be provided to Netezza to assist their customers as an extension of their
internal support team. These services delivered by Compaq Field Engineers will
be limited to on-site hardware component replacement for Netezza's proprietary
systems and third party products with direction from Netezza. This service is
also referred to by Xxxxxxx as "Smart Hands" support which illustrates the
teaming between Compaq's on-site Field Engineer and Xxxxxxx's support team to
resolve problems and replace defective hardware components.
Typical configuration for Xxxxxxx's rack systems consist of:
[**]
Details of the service program are as follows:
Low End Systems (NPS8100/8200)
- [**].
High End Systems (NPS8400 and above)
- [**]
ASSUMPTIONS AND RESPONSIBILITIES
1. This agreement is for U.S. locations only.
2. Netezza will purchase 7x24x4 Carepaq services separately to cover the
maintenance support of the Compaq Proliant Servers.
3. Xxxxxxx is responsible for supplying all non-Compaq parts.
4. Netezza will take the first call from their end customer and perform
diagnosis.
5. If an on-site field engineer is needed, Netezza will log a call with
Compaq's call center.
6. Netezza is responsible for all software and application support.
7. Compaq Services will contact Xxxxxxx upon arriving on-site for further
instructions.
8. To activate this agreement and to place a system under contract, Netezza
will provide the following information to Compaq:
a. Equipment list including model and serial numbers
b. Equipment location
c. Call handling instructions including contact names and numbers.
9. Locations requiring 7x24x4 Hour service must be within 50 miles of Compaq's
service locations.
PRICE AND PAYMENT
Xxxxxxx agrees to pay Compaq for Time and Materials Services at the monthly fees
and rates shown below. Netezza will issue an open purchase order to Compaq to
cover the cost of the monthly fees and on-site service for each system. If
Compaq determines that services will exhaust ALL spending authority, Compaq will
notify the Netezza Project Manager, as to determine if additional Compaq
services are to be retained. If additional Compaq services are to be retained,
Compaq must receive this authority in writing, no later then 24 hours before ALL
spending authority has been exhausted. If such spending authority notification
has not been received from Netezza and given to Compaq, then Compaq reserves the
right to cease all work until such authority has been granted by Xxxxxxx to
Compaq. Subject to the availability of personnel, Compaq will provide additional
Services only after receiving additional spending authority from Xxxxxxx.
Xxxxxxx agrees to pay Compaq for sales, excise, use or similar taxes. Compaq
will invoice Netezza on a monthly basis. Invoices are due upon receipt.
NETEZZA SYSTEM MONTHLY FEE HOURLY RATE*
-------------- ----------- ------------
NPS 8100/8200 $[**] $[**]
NPS 8400 $[**] $[**]
* ALL SERVICE CALLS WILL BE SUBJECT TO A 4-HOUR MINIMUM CHARGE.
As part of our standard business practice, Compaq Services requests that Netezza
not directly solicit for employment Compaq Services employees involved in the
performance of services, during the performance of such services, or within a
period of one (1) year thereafter.
OWNERSHIP AND CONFIDENTIALITY
All Work Product first developed by Field Engineer under this Agreement shall be
owned by Xxxxxxx subject to Compaq's right to use all ideas, concepts, know how,
and techniques developed by Field Engineer in the course of performing the
Services on Xxxxxxx's systems. Notwithstanding the foregoing, Compaq shall
remain the exclusive owner of all Compaq-owned tools and the underlying
technologies, methodologies and processes used by the Field Engineer in the
course of delivering the Services. Field Engineer and Compaq shall preserve the
confidentiality of all data and information relating to the business of Xxxxxxx
and Xxxxxxx's proprietary tools, techniques, methodologies and processes.
Netezza shall preserve the confidentiality of Compaq's proprietary tools,
technologies, methodologies and processes.
WARRANTY
The Services delivered under this Agreement are in the nature of professional
services and advice. Compaq does not warrant or guarantee the results or
achievements of the Services delivered or any resulting Work Product. Compaq
warrants that the Services will be delivered in a workmanlike manner in
accordance with standards generally accepted in the industry.
EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, COMPAQ DISCLAIMS ALL OTHER
WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
REMEDIES AND LIMITATION OF LIABILITY
Compaq's sole obligation shall be performance of any Service delivered hereunder
which fails to conform to Xxxxxx's warranty provided Xxxxxxx notifies Compaq of
the non-conformance within thirty (30) days of the delivery of the Service.
Except for claims for personal injury or death caused by the negligence of
Compaq or its subcontractors, Compaq's total liability for claims arising under
this Agreement shall be limited to direct damages not exceeding the total amount
paid to Compaq under this Agreement. IN NO EVENT SHALL COMPAQ BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT
NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE. These limitations
shall apply regardless of the form of action, whether under statute, or in
contract or tort, including negligence.
GENERAL
Neither Netezza nor Compaq shall be liable for delay or failure to perform any
of its obligations under this Agreement due to causes beyond its reasonable
control.
This Agreement (and any attachments incorporated into this Agreement) (a) sets
forth the entire understanding of the parties as to the subject matter, (b)
supersedes all prior understandings, agreements, documentation and the terms of
any Netezza purchase orders relating thereto, and (c) may not be modified except
in a written amendment executed by both parties. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas
without regard to that body of laws controlling conflicts of law.
Please indicate your agreement with the above terms by signing this Agreement at
the space provided below and returning to the undersigned at your earliest
convenience.
VERY TRULY YOURS, ACCEPTED AND AGREED:
COMPAQ COMPUTER CORPORATION NETEZZA
By: /s/ [Illegible] By: /s/ Xxxxxxxx Xxxxxx
--------------------------------- ------------------------------------
Title: [Area C5 Manager] Title: VP Operations
Date: 11/4/02 Date: 10/15/02
