NuoDB PROFESSIONAL SERVICES ADDENDUM

PROFESSIONAL SERVICES ADDENDUM

This Professional Services Addendum (the “Addendum”) shall apply to any Professional Services procured by the Licensee pursuant to a Statement of Work. Capitalized terms used but not otherwise defined in this Addendum shall have the meanings assigned to them in the Agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. PROFESSIONAL SERVICES

NuoDB shall provide consulting, integration, implementation, design, development, assessments, training, reviews and other work under the terms and conditions of this Agreement (the “Services”), as specified in one or more supplemental Statements of Work that NuoDB and Licensee may enter into from time to time (each, A “Statement of Work” or an “SOW”).

2. FEES AND PAYMENT

2.1 Payment. In consideration of the Services rendered under this Agreement, Licensee shall pay NuoDB as set forth in each SOW. Except as otherwise provided, all fees are quoted in United States dollars.

2.2 Time and Materials. Unless otherwise specified in an SOW, Licensee shall pay fees for actual time spent and materials purchased for all Services performed by NuoDB in accordance with the NuoDB’s then-current standard rates and procedures.

2.3 Invoicing and Payment. Unless otherwise set forth in an SOW, NuoDB will invoice Licensee regularly according to its standard practices for professional or client services, and all fees and charges are due net 30 days from the invoice date. Unless otherwise stated in an SOW, all payments made under this Agreement shall be in United States dollars.

2.4 Pre-Payments. If Licensee pays NuoDB for any Services under an executed SOW before NuoDB performs such Services, then such prepayments expire six months after the execution date of the applicable SOW. Licensee may not apply the pre-payments towards another SOW, and all such pre-payments are non-refundable.

2.5 Overdue Payments. Any payment not received from Licensee by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at NuoDB's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

2.6 Taxes. Unless otherwise stated in an SOW, NuoDB's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Licensee is responsible for paying all Taxes, excluding only taxes based on NuoDB's income. If NuoDB has the legal obligation to pay or collect Taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee to NuoDB unless Licensee provides NuoDB with a valid tax exemption certificate authorized by the appropriate taxing authority.

3. ACCEPTANCE AND MODIFICATION OF SERVICES

3.1 Acceptance. Upon delivery of the Services, or a portion thereof, NuoDB will deliver an Acceptance Form to Licensee. Acceptance or rejection must be made by the Licensee within 5 business days of receipt, unless an alternative time frame is mutually agreed upon. If Services are rejected, the Licensee must document in reasonable detail on the Acceptance Form the reason for rejection. If the Acceptance Form is not signed within the time period stated above, the Services specified in the Acceptance Form shall be deemed satisfactory and accepted by the Licensee and Licensee shall be obligated to make payment as provided in this Agreement and the applicable Statement of Work. Notwithstanding the foregoing, signature of the time sheet of a NuoDB consultant(s) shall be deemed acceptance of work performed by Consultant(s) in connection with such time sheet.

3.2 Modification. If Licensee wishes to change the services covered by a Statement of Work or wishes to obtain additional services not listed in a Statement of Work (the “Additional Services”), Licensee, through its authorized representative, shall so advise NuoDB, and NuoDB may perform the Additional Services at its discretion. Upon NuoDB’s receipt of Licensee’s request for the Additional Services, the Licensee and NuoDB shall use reasonable, good faith efforts to mutually agree upon the scope of the Additional Services by completing a change order form. If NuoDB performs the Additional Services prior to completion of such change order form, Licensee agrees that NuoDB may expend whatever time NuoDB deems reasonable and necessary to perform the Additional Services and that the charges for such services and other terms and conditions of performance shall be governed by this Agreement.

4. OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS AND LICENSE

4.1 Work Product. “Work Product” means the materials, including documentation and customized software, completed by NuoDB under an SOW and any modifications or improvements to the NuoDB software, excluding any of Licensee’s Confidential Information that may be included in such materials.

4.2 Ownership of Work Product and Other Intellectual Property. Unless otherwise specified in an SOW, NuoDB is the exclusive owner of all Work Product (including any revisions, modifications and enhancements thereto) and any other software, specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that NuoDB or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto. This Agreement is not a sale and does not transfer to Licensee any title or ownership in and to the Work Product.

4.3 Suggestions. Without limiting anything in Section 4.2 above, Licensee hereby grants NuoDB a royalty-free, worldwide, perpetual, sublicenseable license and right to use any suggestions, ideas, inventions, information, processes, know-how and/or techniques expressed in any information provided by Licensee or its authorized users (“Users”) in connection with the Services (collectively, “Licensee Suggestions”), including the right to make, have made, sell, have sold, offer for sale, import, have imported and lease products and services which practice and/or embody Licensee Suggestions. For the avoidance of doubt, Licensee Suggestions excludes the tangible expression of such Licensee Suggestions provided or submitted by Licensee or its Users.

4.4 License for Work Product. Subject of the terms of this Agreement and upon receipt by NuoDB of full payment of fees and expenses due under the applicable Statement of Work, NuoDB grants to Licensee a non-assignable, nonexclusive, non-transferable license to use the Work Product solely in connection with the software licensed from NuoDB under the Agreement during the Subscription Term applicable to such software. Except as expressly set forth in this Agreement, Licensee shall not (a) use the Work Product for itself or for the benefit of any other person or entity, or permit any third party to make such use, and (b) copy, modify, transcribe, store, translate, sell, lease, or otherwise transfer the Work Product, in whole or in part.

4.5 Restrictions.

a.     Restrictions on Access, Copying and Sublicensing. Except as expressly permitted by this Agreement, Licensee shall not (a) modify, copy or create derivative works based on the Work Product; (b) disassemble, reverse engineer, or decompile the any Work Product, or (c) access or use the Work Product in any manner not expressly permitted under this Agreement or the Software License Agreement.

b.     Third Party and Other Proprietary Software. If the Work Product contains or is bundled with third party software or other proprietary NuoDB software, then (a) such software is governed by NuoDB’s standard agreement for such software or other applicable license agreement under which use such software is made available to Licensee, and (b) Licensee may use such third party software or other proprietary NuoDB software solely for the purpose such software is included with the Work Product.

c.     No Other Rights; Assignment. Other than as expressly set forth in this Agreement, no license or other rights in or to the Work Product or Licensee Suggestions are granted to Licensee, and all such licenses and rights are hereby expressly reserved. Licensee hereby assigns and will assign, and will cause each of its Users to assign, all right, title and interest in and to the Work Product and Licensee Suggestions, other than the limited license rights granted in this Agreement.

5. WARRANTY

5.1 Services Warranty. NuoDB warrants that the Services it provides hereunder will be of a professional quality conforming to generally accepted industry standards and practices.

5.2 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, NUODB MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NUODB HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTIBILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LICENSEE’S SOLE REMEDY FOR BREACH OF SUCH EXPRESS LIMITED WARRANTIES IS RE-PERFORMANCE OR REFUND AS SET FORTH IN THIS SECTION 5.

6. ADDITIONAL OBLIGATIONS

6.1 Non-Solicitation. During the term of each SOW and for a period of one year thereafter, Licensee shall not, either directly or indirectly (whether through its employees, independent contractors, consultants or otherwise), employ or engage, or solicit for employment or engagement, any employee, independent contractor, consultant, agent or representative assigned or recommended by NuoDB to perform Services under the applicable SOW.

6.2 Insurance. NuoDB shall maintain, at its own expense, sufficient insurance to cover its performance of Services hereunder, including but not limited to workers’ compensation insurance when required by law.

6.3 NuoDB Personnel. NuoDB shall ensure that its employees and contractors performing the Services are reasonably qualified and experienced. NuoDB shall use its best efforts to replace any NuoDB employee or contractor that Licensee reasonably requests to be replaced. NuoDB conducts background investigations of all of its employees.

6.4 Timely Performance. Licensee acknowledges and agrees that the timely performance by NuoDB of its obligations hereunder is dependent upon Licensee performing its obligations under this Agreement and any SOW, and that any delay or failure to perform by Licensee shall extend the time for NuoDB to perform on a day-for-day basis. Licensee will also perform the obligations specified as “Licensee Obligations” (or other similar heading) in any Statement of Work.

7. TERMINATION

7.1 Termination. This Addendum terminates upon the earliest of:

(1)     30 days after written notice from one party to the other of the defaulting party’s material breach of this Agreement, which breach is not cured within such 30-day period;

(2)     by either party for any reason or no reason 30 days after written notice to the other party;

(3)     by either party immediately upon written notice to the other party of a material breach of Sections 4 or 8;

(4)     immediately upon expiration or termination of the Agreement; and

(5)     immediately upon written notice by either party to the other if the other party (a) becomes insolvent; (b) files a petition, or has a petition filed against it, under any laws relating to insolvency, and the related insolvency proceedings are not dismissed within 60 days after the filing of such petition; (c) enters into any voluntary arrangement for the benefit of its creditors; (d) appoints, or has appointed on its behalf, a receiver, liquidator or trustee of any of such party’s property or assets; or (e) ceases to carry on business in the ordinary course.

7.2 Outstanding Fees. Termination shall not relieve Licensee of the obligation to pay any fees accrued or payable to NuoDB prior to the effective date of termination.

7.3 Survival. The following provisions of this Addendum shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5.2, 6.1 and 7.

7.4 Effect of Termination for Breach. If Licensee materially breaches Section 4 above, then, in addition to any other available remedies under this Agreement, NuoDB may terminate Licensee’s license to use the Work Product upon written notice to Licensee, in which case Section 4.4 above shall become void and of no further force or effect. In such an event, promptly upon NuoDB’s request Licensee shall, at NuoDB’s option, either return to NuoDB, or destroy and certify in writing to NuoDB that it has destroyed, the original and all copies, in whole or in part, in any form, of the Work Product and any other Confidential Information disclosed by NuoDB hereunder.

[End of Professional Services Addendum]