MPS Consultancy Terms & Conditions

Version 1.0 effective as of 15 January 2020

DEFINITIONS

In these MPS Consultancy Terms and Conditions ("Terms"):

"Affiliate" means any entity or individual, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with a party, and "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity or individual, whether through the ownership of voting securities, by contract or otherwise.

"Customer" means the company or person engaging the Consultant pursuant to and as described in a Purchase Order accepted by JetBrains.

"Consultant" or "JetBrains" means JetBrains s.r.o.,with registered office at Na Hrebenech II 1718/10, Nusle, 140 00 Prague, Czech Republic,registered in the Commercial Register with the Municipal Court in Prague, Section C, File 86211, Customer Registration No. 26502275, VAT Reg. No. CZ 26502275, represented by Jiri Kratochvil, authorized representative.

"MPS" means the software product known as JetBrains MPS.

"Personal Data" means any information relating to an identified or identifiable natural person.

"Privacy Policy" means the JetBrains Privacy Policy available at https://www.jetbrains.com/legal/docs/privacy/privacy.html, which may be updated from time to time.

"Purchase Order" means the purchase order for consulting services as requested by the Customer, substantially in the form supplied by JetBrains.

"Services" means the consulting services set out in the Purchase Order.

RETENTION AS CONSULTANT

The Customer retains the Consultant to provide, and the Consultant agrees to provide, Services to the Customer pursuant to these Terms.

SERVICES

The Consultant will, as an independent contractor, perform the Services within (but not exceeding) the scope set out in the Purchase Order.

In providing the Services, JetBrains is not required to deliver a specific product or provide services to specification.

The sufficiency and adequacy of the scope, suitability or intention of the Services is solely the responsibility of the Customer. The Customer agrees that the Consultant has not made, nor is able to make, any warranty or representation regarding the sufficiency, adequacy or suitability of the Services for the purpose for which the Services have been requested, or for any other purpose.

The Services will be provided only during business days (Monday through Friday) and for no more than 8 hours in any one day, unless agreed otherwise.

Any modification of the Services must be in writing and signed by both parties. All charges and expenses arising in connection with any such change will be at the cost of the Customer, including but not limited to any expenses in relation to travel, commuting and accommodation.

COMPENSATION AND CHARGES

The Customer will pay the Consultant the amount set out in the Purchase Order as compensation for the Services payable prior to delivery of the Services by JetBrains, plus any incidental charges as set forth below and any VAT required by valid legislation.

The Customer agrees to bear all of Consultant's reasonable incidental expenses in connection with the provision of the Services, including but not limited to airfare and other travel, accommodation, and commuting between the Consultant's accommodation and the site of provision of the Services. Such expenses will be charged to the Customer prior to the provisions of the Services and will be invoiced to the Customer on the basis of the cost of reasonable estimate of such expenses plus 10%.

All payments by Customer must be paid in EUR within fourteen (14) days after the date of issue of a valid invoice from Consultant, unless specified otherwise in the Purchase Order. All invoices will be issued prior to the provision of Services. The portion pertaining to compensation for the Services must be paid in advance of the Services; incidental charges will be charged subsequently.

TERMINATION

If either Customer or Consultant fails to comply with any provision of these Terms and does not remedy such non-compliance within ten (10) days following notice from the other party specifying the breach and requiring that it be remedied, the non-breaching party will have the right to terminate the Services.

JetBrains reserves the right to (i) terminate provision of the Services without cause on ten (10) days' notice, (ii) reschedule or cancel any aspect of the Services without having to pay any compensation (beyond a refund for cancelled consultations if they are not subsequently consummated within a reasonable time), upon notifying the Customer at least three (3) business days in advance, or (iii) terminate provision of the Services immediately if any matters involving or connected with the Services are illegal or the performance of related obligations is not permitted by applicable law, government regulation or any directive from a relevant authority. In the event of a termination under this paragraph not due to fault of the Company, JetBrains will grant Company a refund for amounts already paid to the extent of consultations not realized in the scope of the Services.

COVENANT OF NON-DISCLOSURE

Each of the Customer and the Consultant must keep confidential and not disclose to any other person (except its own Affiliates and professional advisors, including auditors) any information which could reasonably be deemed to be confidential information relating to the other party which it obtains during the course of the Services or in connection with the Purchase Order ("Confidential Information"). In particular, without limiting the foregoing, the Customer must keep confidential any and all methodologies, technology or trade-secrets used by the Consultant to carry out the Services. The preceding sentence does not apply to the extent:

  • the Customer and the Consultant have entered into a separate agreement relating to non-disclosure; or
  • disclosure is requested or required by law or by any governmental, administrative or regulatory authority, or in any judicial, administrative or arbitration proceeding.

Notwithstanding the termination or completion of the Services, all obligations relating to Confidential Information constituting trade secrets must be maintained until they fall into the public domain.

INTELLECTUAL PROPERTY RIGHTS

All copyright, patent and other intellectual property rights directly or indirectly arising in connection with the Services will vest in the Consultant. No title or proprietary rights related to the Services will be transferred to the Customer, unless a specific agreement relating to such transfer is executed by the Customer and the Consultant.

For purposes of clarity, the Consultant retains all copyright, patent and other intellectual property rights ("Rights") pertaining to the MPS platform, and to any Rights to any developments or works the Consultant may create in the provision of the Services; Rights to developments or works wholly created by the Company in the course of using MPS will vest in the Company. The Consultant is not and will not be responsible for support of any features or plugins developed by or for Company.

All rights in intellectual property provided in connection with the Services by JetBrains, including but not limited to author's works, as set out in Section 2 of Act No. 121/2000 Coll., on Copyright, rights pertaining to copyright and the amendment of certain laws, as amended, will vest in JetBrains. All fixes and new functionalities to MPS designed, developed, and implemented in the connection with the Services will become part of MPS and will be redistributable under the Apache 2.0 Open Source License or any other applicable license under which the MPS product is distributed.

The Customer and its Affiliates may make audio and video recordings, as well as still pictures, of trainings provided in the course of the Services, provided that any such recordings or pictures are limited to the Customer's (and its Affiliates') internal use only; any other use of recordings or pictures made during the course of the Services requires the Consultant's prior written consent. Any such recordings or pictures will constitute, and be considered and treated as, the Consultant's exclusive intellectual property.

OTHER OBLIGATIONS

If the Services are not provided remotely, the Customer must ensure that reasonable safety and security policies and measures are in place at the site of provision of the Services to ensure the health and personal safety of the Consultant's employees, contractors, and representatives.

The Customer may make audio and video recordings, as well as still pictures, of trainings provided in the course of the Services, provided that any such recordings or pictures are limited to the Customer's internal use only; any other use of recordings or pictures made during the course of the Services requires the Consultant's prior written consent. Any such recordings or pictures will constitute, and be considered and treated as, the Consultant's exclusive intellectual property.

DISCLAIMER OF DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CONSULTANT OR ITS AFFILIATES, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE TO THE CUSTOMER UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY THE CUSTOMER, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, NEGLIGENCE, FAILURE TO MEET ANY DUTY INCLUDING GOOD FAITH OR REASONABLE CARE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE PROVISION OF THE SERVICES, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

IN ANY EVENT CONSULTANT'S ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES PURSUANT TO THE PURCHASE ORDER.

PUBLICITY

The Consultant may refer to the provision of the Services to the Customer for marketing purposes and in doing so, use the Customer's name and logo and generally describe the Services provided.

EXPORT CONTROL

The Customer must comply with all applicable laws and regulations concerning economic sanctions, export controls, import regulations, and trade embargoes, including those of the European Union and United States (such as the Export Administration Regulations and regulations administered by OFAC) (all such laws and regulations, "Export Control Laws"). The Customer is not an entity targeted by Export Control Laws, nor owned or controlled by or acting on behalf of any person targeted by Export Control Laws. The Customer must ensure in particular that no aspect of the Services, JetBrains product, or recording or picture made during the course of the Services, is downloaded, transferred, exported, or re-exported directly or indirectly in violation of Export Control Laws, or used for any purpose prohibited by Export Control Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.

FEEDBACK

JetBrains products and services often give the Customer the option to provide feedback, such as ideas, suggestions, proposals, compliments, or problems encountered. JetBrains invites the Customer to provide such feedback as well as to post comments on JetBrains website, blogs, and discussion forums. If the Customer submits feedback to JetBrains, the Customer grants JetBrains a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and/or publicly perform such feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.

PERSONAL DATA

In connection with the Services, JetBrains and associated companies of JetBrains may process the Customer's Personal Data, in particular the Customer's contact and identification details and information about the Customer's subscription and payments, for the following purposes:

1. To provide the Customer with software-related services or information;

2. To improve JetBrains offerings based on usage;

3. For JetBrains' internal evidence purposes and to protect the rights and interests of JetBrains and other users;

4. To protect JetBrains from piracy and unlawful use of JetBrains software or services;

5. To promote and market JetBrains software and services; and

6. To fulfil legal duties stipulated by accounting, taxation and other laws.

The Customer may object to the processing of its Personal Data for purposes 1 through 5 listed above at any time. More detailed information about personal data processing for the aforementioned purposes and regarding the Customer's rights can be found in JetBrains' Privacy Policy, available at the JetBrains website at www.jetbrains.com.

For the aforementioned purposes, JetBrains may process information including but not limited to the Customer's name, email address, username, physical address, telephone number, payment data, company name, and tax identification number where applicable. The Customer expressly provides its Personal Data to receive JetBrains software, support, and Services.

When JetBrains transfers Personal Data to a third party, JetBrains is responsible for the handling of the Customer's Personal Data by such third party. Such transfers are made to assist JetBrains in providing its services to the Customer or in its operations. Personal Data collected from the Customer may be transferred to:

  • third-party payment provider to process payment transactions; a third-party cloud accounting service; resellers who are handling purchases of JetBrains products in a certain region (in such cases, the Customer is notified before the transfer of the Customer's Personal Data); other Customer representatives; and/or a third-party vendor of any plugin, extension or other software designed to work with a JetBrains product.

JetBrains may communicate with Customers by sending them emails aiming to help avoid interruption of a service. Such examples include:

  • payment reminders; debt reminders; license expiration reminders; license delivery and confirmation emails; expiration reminders regarding credit cards saved for automatic payments; purchase follow-ups requesting information about the Customer to improve customer service; license assignment emails; administrator invitation emails; and purchase administration requests.

MISCELLANEOUS

Cooperation. The Customer must, from time to time at the request of the Consultant, provide the Consultant with further information as needed to provide the Services and comply with these Terms.

Force majeure. If either the Customer or the Consultant is prevented from performing any obligation under these Terms or in connection with the Services due to causes beyond its reasonable control ("Force Majeure Event"), such party will be entitled to suspend performance of such obligations for the duration of the Force Majeure Event, except in relation to any payment obligations, upon delivery of a written notice to the other party as soon as practicable after the occurrence of the Force Majeure Event. If the Force Majeure Event persists for more than thirty (30) days, either party may elect to terminate the Services upon three (3) days' notice to the other Party. The Customer agrees to pay on a pro rata basis for all Services rendered by Consultant up to such suspension or such termination.

No assignment. The agreement between the Consultant and the Customer on provision of the Services is not assignable by either the Consultant or the Customer.

Governing law. These Terms are governed by the laws of the Czech Republic, excluding conflict of law principles. All disputes arising hereunder and/or in connection with the Services will be brought to and finally decided by a competent court in the Czech Republic. The Consultant and the Customer agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Services or to these Terms.

Invalidity. These Terms are severable so that if any provision is deemed invalid or unenforceable for any reason, such invalidity or unenforceability will not affect the remaining provisions.

Modifications. No terms and conditions other than those contained herein will be binding upon JetBrains unless accepted by JetBrains in writing, signed by a duly authorized representative of JetBrains. If the Customer's terms and conditions are different from or purport to add to these Terms, these Terms will prevail and such terms and conditions of the Customer are expressly rejected, unless otherwise agreed in writing with JetBrains.

Terms subject to change. These Terms are subject to change at any time by JetBrains by posting the updated Terms on the JetBrains website at www.jetbrains.com.

Opportunity for review. By placing a Purchase Order for Services, the Customer agrees it has had sufficient opportunity to review these Terms, understand their content, negotiate them, and seek independent professional legal advice before accepting them. Consequently, any statutory "form contract" ("adhesion contract") regulations will not be applicable to these Terms.

For any questions regarding these Terms, please contact legal@jetbrains.com.