Master Software Development

Agreement (Pro-customer)
A master services agreement for the procurement of software development
and related services. While drafted in favor of the customer, this Standard
Document aims to be reasonable and
includes provisions commonly negotiated in
software development agreements. This Standard Document has integrated
notes with important explanations and drafting and negotiating tips.
PLC Intellectual Property & Technology


Note: Read This Before Using Document
Master Software Development Agreement
This Master Software Development Agreement (the "Agreement"), dated
as of [DATE] (the "Effective Date"), is by and between [DEVELOPER
NAME], a [STATE OF ORGANIZATION] [TYPE OF LEGAL ENTITY] with offices
located at [ADDRESS] ("Developer"), and [CUSTOMER NAME], a [STATE
OF ORGANIZATION] [TYPE OF LEGAL ENTITY] with offices located at
[ADDRESS] ("Customer").
Note: Parties
WHEREAS, Developer is engaged in the business of providing software
development and related services and work product; and
WHEREAS, Customer wishes to retain Developer to provide the software
development and related services and work product described herein and
from time to time in separately executed statements of work, and Developer
wishes to provide the same to Customer, each on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Customer and
Developer agree as follows:
1. Definitions.For purposes of this Agreement, the following terms have the
following meanings:
Note: Definitions
"Acceptance" has the meaning set forth in Section 10.5.
"Acceptance Tests" means such tests as may be conducted in accordance
with Section 10 and the applicable Statement of Work to determine whether
any Software Deliverable meets the requirements of this Agreement and the
Specifications and Documentation therefor.
"Action" has the meaning set forth in Section 19.1.
"Affiliate" of a Person means any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such Person. The term "control" (including the terms
"controlled by" and "under common control with") means the direct or
indirect [power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise/ownership of more than [NUMBER IN WORDS] percent
([NUMBER] %) of the voting securities of a Person].
Note: Affiliate
"Agreement" has the meaning set forth in the preamble.
"Aggregate Software" means the Software, as a whole, to be developed
or otherwise provided under a particular Statement of Work. For avoidance
of doubt, if a Statement of Work provides for a single Software Deliverable,
such Software Deliverable shall also constitute Aggregate Software.
Note: Aggregate Software
"Allegedly Infringing Materials" has the meaning set forth in Section
19.3(a)(ii).
"Approved Open-Source Components" means Open-Source Components
that Customer has approved to be included in or used in connection with any
Software developed or provided hereunder and are specifically identified in
Schedule [C] or the Statement of Work for such Software.
"Approved Third-Party Materials" means the Third-Party Materials that
Customer has approved to be included in or for use in connection with any
Software developed or provided hereunder, in each case solely as specifically
identified in Schedule [C] or the Statement of Work for such Software.
["Background Technology" means all Software, data, know-how, ideas,
methodologies, specifications and other technology in which Developer owns
such Intellectual Property Rights as are necessary for Developer to grant the
rights and licenses set forth in Section 16.1, and for Customer (including its
licensees, successors and assigns) to exercise such rights and licenses,
without violating any right of any Third Party or any Law or incurring any
payment obligation to any Third Party, and that: (a) are identified as
background technology in any Statement of Work; and (b) were or are
developed or otherwise acquired by Developer prior to the [date of the
RFP/Effective Date], with respect to the Initial Statement of Work, or the
date of Customer's request for additional Services, with respect to any other
Statement of Work.]
Note: Background Technology
["Business Requirements Specification" means the initial specification
setting forth Customer's business requirements regarding the features and
functionality of the Software under the Initial Statement of Work and
attached as Schedule [B] hereto.]
Note: Business Requirements Specification
"Change" has the meaning set forth in Section 3.4.
"Change Agreement" has the meaning set forth in Section 3.4(b).
"Change Proposal" has the meaning set forth in Section 3.4(a).
"Change Request" has the meaning set forth in Section 3.4.
"Confidential Information" means any information that is treated as
confidential by [Customer/either party], including trade secrets, technology,
information pertaining to business operations and strategies, and
information pertaining to customers, pricing and marketing[, in each case to
the extent it is: (a) if in tangible form, marked as confidential; or (b)
otherwise, identified at the time of disclosure as confidential, and confirmed
in writing as such within [NUMBER IN WORDS] ([NUMBER]) days after
disclosure]. Without limiting the foregoing, Confidential Information of
Customer includes the [Customer-Owned] Work Product[, and the terms and
existence of this Agreement]. [Confidential Information does not include
information that [Developer/the Receiving Party] can demonstrate by
documentation: (w) was already known to [Developer/the Receiving Party]
without restriction on use or disclosure prior to receipt of such information
directly or indirectly from or on behalf of [Customer/the Disclosing Party] ;
(x) was or is independently developed by [Developer/the Receiving Party]
without reference to or use of any of [Customer's/the Disclosing Party's]
Confidential Information; (y) was or becomes generally known by the public
other than by breach of this Agreement by, or other wrongful act of,
[Developer/the Receiving Party] or any of its Representatives; or (z) was
received by [Developer/the Receiving Party] from a Third Party who was not,
at the time, under any obligation to [Customer/the Disclosing Party] or any
other Person to maintain the confidentiality of such information].
Note: Confidential Information
"Controlled Technology" means any software, documentation, technology
or other technical data, or any products that include or use any of the
foregoing, the export, re-export or release of which to certain jurisdictions or
countries is prohibited or requires an export license or other governmental
approval, under any Law, including the US Export Administration Act and its
associated regulations.
"CPI" has the meaning set forth in Section 13.2(c)(ii)
"Customer" has the meaning set forth in the preamble.
"Customer Materials" means all materials and information, including
documents, data, know-how, ideas, methodologies, specifications, software,
content and technology, in any form or media, directly or indirectly provided
or made available to Developer by or on behalf of Customer in connection
with this Agreement, whether or not the same: (a) are owned by Customer,
a Third Party or in the public domain; or (b) qualify for or are protected by
any Intellectual Property Rights.
Note: Customer Materials
"Customer-Owned Work Product" means all Work Product other than
materials expressly identified in a [schedule to this Agreement or]
Statement of Work as Background Technology, Approved Third-Party
Materials or Approved Open-Source Components.
"Deliverables" means all Software Deliverables and all other documents,
work product and other materials, that Developer is required to [or
otherwise does] provide to Customer [or its designee] under this Agreement
and otherwise in connection with any Services, including any and all items
specifically identified as Deliverables in any Statement of Work.
Note: Deliverables
"Developer" has the meaning set forth in the preamble.
"Developer Personnel" means all employees of Developer or any
Permitted Subcontractors involved in the performance of Services or
providing Work Product hereunder.
["Developer's Proposal" means the developer's proposal submitted in
response to the RFP.]
Note: Developer's Proposal
["Disclosing Party" has the meaning set forth in Section 21.1.]
Note: Disclosing Party
["Dispute Resolution Procedure" means the procedure for resolving
disputes under this Agreement as set forth in Schedule [I]. ]
Note: Dispute Resolution Procedure
"Documentation" means all user manuals, operating manuals, technical
manuals and any other instructions, specifications, documents and
materials, in any form or media, that describe the functionality, installation,
testing, operation, use, maintenance, support and technical and other
components, features and requirements of any Software.
Note: Documentation
"Effective Date" has the meaning set forth in the preamble.
"Fees" has the meaning set forth in Section 13.1
"Force Majeure" has the meaning set forth in Section 22.2.
"Functional Specification" means, with respect to any Software, the
document setting forth Customer's requirements with respect to such
Software's features and functions, and included in the Statement of Work for
such Software.
Note: Functional Specification
"Harmful Code" means any: (a) virus, trojan horse, worm, backdoor or
other software or hardware devices the effect of which is to permit
unauthorized access to, or to disable, erase, or otherwise harm, any
computer, systems or software; or (b) time bomb, drop dead device, or
other software or hardware device designed to disable a computer program
automatically with the passage of time or under the positive control of any
Person, or otherwise deprive Customer of its lawful right to use such
Software.
"Implementation Plan" means the schedule included in each Statement of
Work setting forth the sequence of events for the performance of Services
under such Statement of Work, including the Milestones and Milestone Dates
thereunder.
Note: Implementation Plan
["Initial Statement of Work" means the Statement of Work for the initial
Software development and related Services hereunder, [as developed by
Developer and agreed by the parties as set forth in Section 3.2 and/,]
attached as Schedule [B] hereto.]
Note: Initial Statement of Work
["Initial Term" has the meaning set forth in Section 17.1.]
Note: Initial Term
"Intellectual Property Rights" means all or any of the following: (a)
patents, patent disclosures and inventions (whether patentable or not); (b)
trademarks, service marks, trade dress, trade names, logos, corporate
names and domain names, together with all of the goodwill associated
therewith; (c) copyrights and copyrightable works (including computer
programs), mask works and rights in data and databases; (d) trade secrets,
know-how and other confidential information; and (e) all other intellectual
property rights, in each case whether registered or unregistered and
including all applications for, and renewals or extensions of, such rights, and
all similar or equivalent rights or forms of protection provided by applicable
Law in any jurisdiction throughout the world.
Note: Intellectual Property Rights
"Intended Users" means the category(ies) of users that are intended to
use Software or particular features or functions thereof, as described in the
Specifications for such Software.
Note: Intended Users
"Key Personnel" means any Developer Personnel identified as key
personnel in this Agreement or, with respect to any Statement of Work, such
Statement of Work.
"Law" means any statute, law, ordinance, regulation, rule, code, order,
constitution, treaty, common law, judgment, decree, other requirement or
rule of law of any federal, state, local or foreign government or political
subdivision thereof, or any arbitrator, court or tribunal of competent
jurisdiction.
"Losses" has the meaning set forth in Section 19.1
"Maintenance and Support Schedule" means the schedule attached as
Schedule [G] hereto, setting forth the Maintenance and Support Services[,
the Support Fees therefor] and the parties additional rights and obligations
with respect thereto.
Note: Maintenance and Support Schedule
"Maintenance and Support Services" means the Software maintenance
and support services the Developer is required to [or otherwise does]
provide under this Agreement as set forth in the Maintenance and Support
Schedule.
Note: Maintenance and Support Services
"Milestone" means an event or task described in the Implementation Plan
under any Statement of Work that must be completed by the corresponding
Milestone Date set forth therein
Note: Milestone
"Milestone Date" means the date by which a particular Milestone must be
completed as set forth in the Implementation Plan under any Statement of
Work.
"Non-Conformity" means any failure of any (a) Software or
Documentation to conform to the requirements of this Agreement (including
any applicable Statement of Work); or (b) Software to conform to the
requirements of this Agreement or the Specifications or Documentation
therefor.
"Open-Source Components" means any software component that is
subject to any open-source copyright license agreement, including any GNU
General Public License or GNU Library or Lesser Public License, or other
license agreement that substantially conforms to the Open Source Definition
as prescribed by the Open Source Initiative or otherwise may require
disclosure or licensing to any third party of any source code with which such
software component is used or compiled.
Note: Open-Source Components: Definition
"Open-Source License" has the meaning set forth in Section 4.3.
"Operating Environment" means, collectively, the Customer platform and
environment on, in or under which Software is intended to be installed and
operate, as set forth in the Statement of Work for such Software, including
such structural, functional and other features, conditions and components as
hardware, operating software and system architecture and configuration.
"Permitted Subcontractor" has the meaning set forth in Section 6.3.
"Person" means an individual, corporation, partnership, joint venture,
limited liability entity, governmental authority, unincorporated organization,
trust, association or other entity.
["Receiving Party" has the meaning set forth in ]Section 21.1.
Note: Receiving Party
"Reimbursable Expenses" has the meaning set forth in Section 13.4.
["Renewal Term" has the meaning set forth in Section 17.2.]
Note: Renewal Term
"Representatives" means a party's [and its Affiliates'] employees, officers,
directors, consultants, legal advisors[,/and] Permitted Subcontractors[ and,
with respect to Customer, its independent contractors and service
providers].
Note: Representatives
["RFP" means Customer's request for proposal, dated as of [DATE][,
attached as Exhibit 1 to this Agreement].]
Note: RFP
"Services" means any of the services Developer is required to [or otherwise
does] provide under this Agreement or any Statement of Work, as more fully
described in this Agreement or such Statement of Work.
"Site" means the physical location designated by Customer in, or in
accordance with, this Agreement or any Statement of Work for delivery
and/or installation of any Software.
"Software" means the computer program(s), including programming tools,
scripts and routines, the Developer is required to [or otherwise does]
develop or otherwise provide under this Agreement, as described more fully
in each Statement of Work[, including all updates, upgrades, new versions,
new releases, enhancements, improvements and other modifications made
or provided pursuant to the Maintenance and Support Services]. As context
dictates, Software may refer to one or more Software Deliverables or
Aggregate Software.
Note: Software
"Software Deliverable" means any Software, together with the
Documentation therefor, required to be delivered as a Milestone as set forth
in the Implementation Plan for such Software.
"Source Code" means the human readable source code of the Software to
which it relates, in the programming language in which such Software was
written, together with all related flow charts and technical documentation,
including a description of the procedure for generating object code, all of a
level sufficient to enable a programmer reasonably fluent in such
programming language to understand, operate, support, maintain and
develop modifications, upgrades, updates, enhancements, improvements
and new versions of, and to develop computer programs compatible with,
such Software.
"Specifications" means, for any Software, the specifications collectively set
forth in the [Business Requirements Specification,] Functional Specification
and Technical Specification therefor[, together with any other specifications
set forth in the RFP or Developer's Proposal, if any, for such Software, or
elsewhere in the relevant Statement of Work].
Note: Specifications
"Statement of Work" means any statement of work entered into by the
parties and attached as a schedule to this Agreement. [The Initial Statement
of Work [is/shall be] attached as Schedule [B], and subsequent ]Statements
of Work shall be sequentially identified and attached as Schedules [B]-1,
[B]-2, [B]-3, etc.
Note: Statement of Work
"Support Fees" means the fees, if any, payable by Customer for
Maintenance and Support Services as set forth in the [Fee/Maintenance and
Support] Schedule or any Statement of Work.
"Support Commencement Date" means, with respect to any Software,
the date on which the Warranty Period for such Software expires or such
other date as may be set forth in the Maintenance and Support Schedule or
the Statement of Work for such Software.
"Technical Specification" means, with respect to any Software, the
document setting forth the technical specifications for such Software and
included in the Statement of Work for such Software.
"Term" has the meaning set forth in [Section 17.1/Section 17.2].
Note: Term
"Testing Period" has the meaning set forth in Section 10.1.
"Third Party" means any Person other than Customer or Developer. For
purposes of this Agreement, the parties' Affiliates are Third Parties.
"Third-Party Materials" means any materials and information, including
documents, data, know-how, ideas, methodologies, specifications, software,
content and technology, in any form or media, in which any Person other
than Customer or Developer owns any Intellectual Property Right, but
specifically excluding Open-Source Components.
"Warranty Period" means, for any Software, the [NUMBER IN WORDS]
([NUMBER)] [day/week/month] period commencing (a) in the case of
Aggregate Software, Customer's Acceptance thereof; and (b) in the case of
any updates, upgrades, new versions, new releases, enhancements and
other modifications to previously-Accepted Aggregate Software, including
those made pursuant to the Maintenance and Support Services, Customer's
receipt thereof.+
"Work Product" means all Software, Documentation, Specifications and
other documents, work product and materials related thereto, that
Developer is required to, or otherwise does, provide to Customer [or its
designee] hereunder, together with all ideas, concepts, processes and
methodologies developed in connection therewith whether or not embodied
therein.
Note: Work Product
2. Engagement of Developer; Time of the Essence.
2.1 Engagement of Developer.Customer hereby engages Developer, and
Developer hereby accepts such engagement, to develop Software and
provide Services related thereto as described herein or otherwise requested
by Customer from time to time and described in Statements of Work
therefor, all on the terms and conditions set forth in this Agreement and
such Statements of Work.
2.2 Relationship Managers.Throughout the Term of this Agreement, each
party shall maintain within its organization a relationship manager to serve
as such party's primary point of contact for day-to-day communications,
consultation and decision making regarding this Agreement. Each party shall
ensure its relationship manager has the requisite authority and skill to
perform in such capacity. The parties' initial relationship managers are[:
[RELATIONSHIP MANAGERS, TITLES, CONTACT INFORMATION]/identified on
Schedule [A] hereto. Each party shall use [commercially reasonable/best]
efforts to maintain the same relationship manager in place throughout the
Term. If either party's relationship manager ceases to be employed by such
party[ or such party otherwise wishes to replace its relationship manager],
such party shall promptly name a new relationship manager by written
notice to the other party.
Note: Relationship Manager
2.3 Time of the Essence.Developer acknowledges that time is of the essence
with respect to Developer's obligations hereunder and agrees that prompt
and timely performance of all such obligations in accordance with this
Agreement and each Statement of Work (including the Implementation Plan
and all Milestone Dates included therein) is strictly required.
Note: Time of the Essence
3. Statements of Work.Developer shall provide Services and Work Product
pursuant to Statements of Work entered into as set forth herein. No
Statement of Work shall be effective unless signed by duly authorized
representatives of both parties. The term of each Statement of Work shall be
as set forth therein or, if no term is specified, shall commence on the
parties' full execution thereof and terminate when the parties have fully
performed their obligations thereunder. Unless a Statement of Work
expressly states otherwise, Customer shall have the right to terminate such
Statement of Work as set forth in Section 17.3.
3.1 Statement of Work Requirements.Each Statement of Work shall be
[substantially] in the form of Exhibit [2] attached hereto, and shall include
the following:
(a) names and contact information for the parties' project
managers and, if relevant, Key Personnel of Developer under such
Statement of Work;
(b) a detailed description of the Services to be provided
thereunder;
(c) a detailed description of the Software and other Work
Product to be developed or otherwise provided under such Statement of
Work, including a:
(i) Functional Specification;
(ii) Technical Specification; and
(iii) description of the Documentation to be provided;
(d) an Implementation Plan, including all Milestones, the
corresponding Milestone Dates and the parties' respective responsibilities
therefor;
(e) Fees payable under such Statement of Work, the manner in
which such Fees shall be calculated, the due dates for payment thereof
including any Milestones on which any such Fees are conditioned, and such
other information as the parties deem necessary;
(f) disclosure of all Approved Third-Party Materials, Approved
Open-Source Components and any Controlled Technology, in each case
accompanied by such related documents as may be required by this
Agreement with respect thereto; and
(g) a detailed description of all Customer Resources required
under such Statement of Work.
3.2 [Initial Statement of Work.The Initial Statement of Work [is/shall be
developed and agreed by the parties as set forth in this Section 3.2 and]
attached as Schedule [B] hereto.
(a) [Commencing on the Effective Date, Developer shall
perform the consulting and related Services set forth in Schedule [B] for
purposes of creating and providing to Customer Developer's proposal for
developing Software that meets all criteria set forth in the Business
Requirements Specification.
(b) Developer shall deliver its proposed Initial Statement of
Work to Customer on or before the due date therefor as set forth in
Schedule [B], whereupon Customer shall have the period set forth in
Schedule [B] to review and, in its discretion, approve or raise objections to
the Developer's proposal. If Customer raises any such objections, the parties
shall negotiate in good faith to amend the proposal, provided that:
(i) to the extent the proposal does not comply with the
requirements of this Agreement and the Business
Requirements Specification, it shall be amended to
so comply; and
(ii) either party may terminate negotiations and this
Agreement if the parties fail to agree on the Initial
Statement of Work prior to the date specified in
Schedule [B].
(c) Upon the parties' agreement to the Initial Statement of
Work, each party shall cause the same to be signed by its duly authorized
representative. Upon its mutual execution, the Initial Statement of Work
shall be attached as Schedule [B]-1 and form a part of this Agreement.
(d) If this Agreement is terminated by either party pursuant to
Section 3.2(b)(ii):
(i) Customer's rights to the Initial Statement of Work and
all drafts thereof and proposals relating thereto
shall be as set forth in Schedule [B]; and
(ii) Developer shall be compensated as set forth in
Schedule [B].]]
Note: Initial Statement of Work
3.3 [Additional] Statements of Work.[Promptly/Within [NUMBER IN WORDS]
([NUMBER]) days] following receipt of Customer's request for [additional]
Software development or other Services, Developer shall provide Customer
with a proposal [substantially] in the form of, and containing all information
specified in, the attached Exhibit [2]. Upon the parties' agreement with
respect to the terms of such proposal, all such terms shall be incorporated in
a Statement of Work and each party shall cause the same to be signed by its
duly authorized representative. Each fully executed Statement of Work shall
be attached as a Schedule to, and by this reference incorporated in and
made a part of, this Agreement.
Note: [Additional] Statements of Work
3.4 Changes to Statements of Work.Customer may at any time request in
writing (each, a "Change Request") changes to any Statement of Work,
including changes to the Services, Work Product, Implementation Plan or
any Specifications (each, a "Change"). Upon Customer's submission of a
Change Request, the parties shall evaluate and implement all Changes in
accordance with this Section 3.4.
(a) As soon as reasonably practicable, and in any case within
[NUMBER IN WORDS] ([NUMBER]) days following receipt of a Change
Request, Developer shall provide Customer with a written proposal for
implementing the requested Change ("Change Proposal"), setting forth:
(i) a written description of the proposed Changes to any
Services, Work Product or Deliverables;
(ii) an amended Implementation Plan reflecting: (A) the
schedule for commencing and completing any
additional or modified Services, Work Product or
Deliverables; and (B) the effect of such Changes, if
any, on completing any other Services or Work
Product under the Statement of Work;
(iii) any additional Third-Party Materials, Open-Source
Components, Controlled Technology and Customer
Resources Developer deems necessary to carry out
such Changes; and
(iv) any increase or decrease in Fees resulting from the
proposed Changes, which increase or decrease
shall reflect only the increase or decrease in time
and expenses Developer requires to carry out the
Change.
(b) Within [NUMBER IN WORDS] ([NUMBER]) days following
Customer's receipt of a Change Proposal, Customer shall by written notice to
Developer, approve, reject or propose modifications to such Change
Proposal. If Customer proposes modifications, Developer shall modify and
re-deliver the Change Proposal reflecting such modifications, or notify
Customer of any disagreement therewith, in which event the parties shall
negotiate in good faith to resolve their disagreement. Upon Customer's
approval of the Change Proposal or the parties' agreement on all proposed
modifications thereto, as the case may be, the parties shall execute a
written agreement to the Change Proposal ("Change Agreement"), which
Change Agreement shall constitute an amendment to the Statement of Work
to which it relates; and
(c) If the parties fail to enter into a Change Agreement within
[NUMBER IN WORDS] ([NUMBER]) days following Customer's response to a
Change Proposal, Customer shall have the right, in its discretion, to:
(i) require Developer to perform the Services under the
Statement of Work without the Change;
(ii) require Developer to continue to negotiate a Change
Agreement;
(iii) initiate a Dispute Resolution Procedure; or
(iv) notwithstanding any provision to the contrary in such
Statement of Work, terminate the Statement of
Work pursuant to Section 17.3(a)(iii).
No Change will be effective until the parties have executed a Change
Agreement with respect thereto. Except as Customer may request in its
Change Request or otherwise in writing, Developer shall continue to perform
its obligations in accordance with the Statement of Work pending negotiation
and execution of a Change Agreement. Developer shall [use its
[commercially reasonable/best] efforts to] limit any delays or Fee increases
from any Change to those necessary to perform the Change in accordance
with the applicable Change Agreement. Each party shall be responsible for
its own costs and expenses of preparing, evaluating, negotiating and
otherwise processing any Change Request, Change Proposal and Change
Agreement.
Note: Changes
4. Software.Developer shall design, develop, create, test, deliver[, install,
configure, integrate,] customize and otherwise provide[ and make fully
operational] Software as described in each Statement of Work on a timely
and professional basis in accordance with all terms, conditions and
Specifications set forth in this Agreement and such Statement of Work.
4.1 Software Specifications.Developer shall ensure all Software complies
with the Specifications therefor. [Except to the extent expressly provided
otherwise in the Statement of Work for any Software, ]Developer shall
provide all Software to Customer in both object code and Source Code form.
Note: Software Specifications
4.2 Third-Party Materials.
(a) Developer shall not include in any Software, and operation
of all Software in accordance with its Specifications and Documentation shall
not require, any Third-Party Materials[, other than Approved Third-Party
Materials specifically described in Schedule [C] or the Statement of Work for
such Software and licensed to Customer in accordance with Section 16.3].
(b) Except as provided otherwise in Schedule [C] or the
applicable Statement of Work, Developer shall secure, at its sole cost and
expense, all necessary rights, licenses, consents, approvals and
authorizations necessary for Customer to use, perpetually and throughout
the universe, all Approved Third-Party Materials as incorporated in or
otherwise used in conjunction with Software as specified in the applicable
Statement of Work or elsewhere in this Agreement.
Note: Third-Party Materials
4.3 Open-Source Components.Developer shall not include in any Software,
and operation of all Software in accordance with its Specifications and
Documentation shall not require the use of, any Open-Source Components[,
other than Approved Open-Source Components specifically described in
Schedule [C] or the Statement of Work for such Software, and for which the
relevant open-source license(s) (each, an "Open-Source License") are
attached as exhibits to Schedule [C] or such Statement of Work. Developer
shall provide Customer with a complete, machine-readable copy of the
Source Code for Approved Open-Source Components in accordance with the
terms of the Open-Source License(s) therefor at no cost to the Customer].
Note: Open-Source Components
4.4 Controlled Technology.Developer shall not include in any Software any
Controlled Technology[, except to the extent expressly disclosed in the
Statement of Work for such Software].
Note: Controlled Technology
5. Documentation.Prior to or concurrently with the delivery of any Software
hereunder, or by such earlier date as may be specified in the
Implementation Plan for such Software, Developer shall provide Customer
with complete and accurate Documentation for such Software. Where the
applicable Statement of work requires or permits delivery of Software in two
or more phases, Developer shall also provide Customer with integrated
Documentation for the Aggregate Software upon its delivery.
5.1 Adequacy of Documentation.All Documentation shall include all such
information as may be reasonably necessary for the effective installation,
testing, use, support and maintenance of the applicable Software by the
Intended User, including the effective configuration, integration, and
systems administration of the Software and performance of all other
functions set forth in the Specifications.
5.2 Documentation Specifications.Developer shall provide all Documentation
in both hard copy and electronic form, in such formats and media as are set
forth in Schedule [D] or the relevant Statement of Work, or as Customer
may otherwise [reasonably] request [in writing].
5.3 Third-Party Documentation.Other than Documentation for Approved
Third-Party Materials and Approved Open-Source Components, no
Documentation shall consist of or include Third-Party Materials. To the
extent Documentation consists of or includes Third-Party Materials,
Developer shall secure, at its sole cost and expense, all rights, licenses,
consents, approvals and authorizations specified in Section 16.3 with respect
to Approved Third-Party Materials.
Note: Documentation
6. Performance of Services.Developer shall provide all Services and Work
Product hereunder in a timely, professional and workmanlike manner and in
accordance with the terms, conditions and Specifications set forth in this
Agreement and each Statement of Work.
6.1 Developer Personnel.
(a) Developer is solely responsible for all Developer Personnel
and for the payment of their compensation, including, if applicable,
withholding of income taxes, and the payment and withholding of social
security and other payroll taxes, unemployment insurance, workers'
compensation insurance payments and disability benefits.
(b) Prior to any Developer Personnel performing any Services
hereunder, Developer shall:
(i) ensure that such Developer Personnel have the legal
right to work in the United States;
(ii) require such Developer Personnel to execute written
agreements[, in form and substance [reasonably]
acceptable to Customer/substantially in the form of
Exhibit [3] hereto], that bind such Developer
Personnel to confidentiality provisions that are at
least as protective of Customer's information
(including all Confidential Information) as those
contained in this Agreement and Intellectual
Property Rights provisions that grant Customer
rights in the Work Product consistent with the
provisions of Section 15.1 and, upon Customer's
request, provide Customer with [a copy of] each
such executed agreement; and
(iii) at its sole cost and expense, conduct background
checks on such Developer Personnel, which
background checks shall comprise, at a minimum,
a review of credit history, references and criminal
record, in accordance with applicable Law.
(c) Developer shall, and shall ensure that all Developer
Personnel, comply with all rules, regulations and policies of Customer that
are communicated to Developer in writing, including security procedures
concerning systems and data and remote access thereto, building security
procedures[, including the restriction of access by Customer to certain areas
of its premises or systems,] and general health and safety practices and
procedures.
6.2 Developer Project Managers.Upon the execution of each Statement of
Work Developer shall appoint, and throughout the term of such Statement of
Work Developer shall maintain, a Developer employee [[reasonably]
acceptable to Customer] to serve as Developer's project manager (each, a
"Developer Project Manager") under such Statement of Work.
(a) Each Developer Project Manager shall:
(i) have the requisite authority, and necessary skill,
experience and qualifications, to perform in such
capacity;
(ii) be responsible for overall management and
supervision of Developer's performance under such
Statement of Work; and
(iii) be Customer's primary point of contact for
communications with respect to such Statement of
Work, including with respect to giving and
receiving all day-to-day approvals and consents
thereunder.
(b) The Developer Project Manager shall attend all regularly
scheduled meetings as set forth in the Implementation Plan and all
additional meetings scheduled on at least [NUMBER IN WORDS] ([NUMBER])
[days'/hours'] prior notice, and otherwise shall be available as set forth in
the Statement of Work.
(c) Developer shall maintain the same Developer Project
Manager throughout the term of such Statement of Work, unless:
(i) [Customer [reasonably] requests in writing the
removal of the Developer Project Manager;
(ii) Customer consents in writing to any removal
[reasonably] requested by Developer in writing;
(iii) the Developer Project Manager ceases to be
employed by Developer, whether by resignation,
involuntary termination or otherwise.
(d) Developer shall promptly replace the Developer Project
Manager under any Statement of Work on the occurrence of any event set
forth in Section 6.2(c). [Such replacement shall be subject to Customer's
[reasonable] prior written approval.
Note: Developer Project Managers
6.3 Subcontractors.Developer shall not[, without the prior written approval
of Customer[, which consent [shall not be unreasonably withheld [or
delayed]/may be given or withheld in Customer's sole discretion],] engage
any Third Party to perform Services (including to create any Work Product)
hereunder. Customer's approval of any such Third Party (each approved
Third Party, a "Permitted Subcontractor") shall not relieve Developer of
its representations, warranties or obligations under the Agreement. Without
limiting the foregoing, Developer shall:
(a) be responsible and liable for the acts and omissions of each
such Permitted Subcontractor (including such Permitted Subcontractor's
employees who, to the extent providing Services or creating Work Product,
shall be deemed Developer Personnel) to the same extent as if such acts or
omissions were by Developer or its employees;
(b) [name Customer a third party beneficiary under Developer's
agreement with each Permitted Subcontractor with respect to the Services
and Work Product;]
(c) be responsible for all fees and expenses payable to, by or
on behalf of each Permitted Subcontractor in connection with this
Agreement, including, if applicable, withholding of income taxes, and the
payment and withholding of social security and other payroll taxes,
unemployment insurance, workers' compensation insurance payments and
disability benefits; and
(d) prior to the provision of Services or creation of Work
Product by any Permitted Subcontractor:
(i) obtain from such Permitted Subcontractor
confidentiality, work-for-hire and intellectual
property rights assignment agreements, [in form
and substance acceptable by
Customer/substantially in the form of Exhibit [3]
hereto], giving Customer rights consistent with
those set forth in Section 15.1 and Section 21 and,
upon request, provide Customer with a fully-
executed copy of each such agreement; and
(ii) with respect to all Permitted Subcontractor
employees providing Services or Work Product,
comply with its obligations under Section 6.1(b).
Note: Subcontractors
7. Customer Obligations.
7.1 Customer Resources and Cooperation.Customer shall be responsible, on
a timely basis in accordance with each Statement of Work, including the
Implementation Plan and Milestone Dates set forth therein, for:
(a) performing all obligations identified as "Customer
Responsibilities" in such Statement of Work;
(b) providing the Customer Materials and such other resources
as may be specified in such Statement of Work (collectively, "Customer
Resources");
(c) providing Developer Personnel with such access to the
Site[s] and Operating Environment as is necessary for Developer to perform
its obligations on a timely basis as set forth in such Statement of Work;
(d) participating with suitably qualified and authorized
personnel in all meetings scheduled in, or in accordance with, such
Statement of Work and such other meetings as may be scheduled on no less
than [NUMBER IN WORDS] ([NUMBER]) days' prior notice; and
(e) providing all consents, approvals, exception notices and
other communications specified in such Statement of Work or as otherwise
may be required under this Agreement.
Note: Customer Obligations
7.2 Customer Project Managers.
(a) Upon the execution of each Statement of Work Customer
shall appoint, and throughout the term of such Statement of Work Customer
shall maintain, a Customer employee to serve as Customer's project
manager under such Statement of Work (each, a "Customer Project
Manager"). Each Customer Project Manager shall:
(i) have the requisite authority, and necessary skill,
experience and qualifications, to perform in such
capacity;
(ii) be responsible for overall management and
supervision of Customer's performance under such
Statement of Work; and
(iii) be Developer's primary point of contact for
communications with respect to such Statement of
Work, including with respect to providing and
receiving all day-to-day approvals and consents
thereunder.
(b) Each Customer Project Manager shall attend all regularly
scheduled meetings as set forth in the Implementation Plan and additional
meetings scheduled on at least [NUMBER IN WORDS] ([NUMBER])
[days'/hours'] prior notice, and otherwise shall be available as set forth in
the Statement of Work.
Note: Customer Project Managers
7.3 Effect of Customer Delays.If, as a result of any failure by Customer to
perform any of its obligations set forth in Section 7.1 on a timely basis under
any Statement of Work, Developer is unable to timely meet all or any
remaining Milestones under such Statement of Work either at all or without
incurring additional costs, Developer may extend such Milestone Dates for
up to the length of Customer's delay or, at Customer's option, increase the
related Fees solely to recover any such additional costs] in accordance with
the following:
(a) Developer shall promptly notify Customer in writing,
proposing a revised Implementation Plan reflecting new Milestone Dates for
each affected Milestone, which Milestone Dates may be extended by no
longer than the length of Customer's delay and, if Developer is able to meet
the original Milestone Dates by incurring additional costs:
(i) for fixed-fee Services, its proposed Fee increase for
meeting the original Milestone Dates; or
(ii) for time-and-materials Services, the estimated costs
of overtime Customer would incur for Developer to
meet the original Milestone Dates.
(b) Upon receipt of any notice given under Section 7.3(a),
subject to Section 7.3(c), Customer shall promptly notify Developer in
writing of its election. Customer's failure to notify Developer within [NUMBER
IN WORDS] ([NUMBER]) days after such receipt shall be deemed an
acceptance of the new Milestone Dates and rejection of all Fee increases.
(c) If Customer disputes Developer's right to extend Milestone
Dates or increase Fees, or the extent of any proposed extension or increase,
Customer shall promptly notify Developer and the parties shall comply with
the Dispute Resolution Procedure.
Notwithstanding anything contained in this Section 7.3 or otherwise in this
Agreement, Developer shall use its [commercially reasonable/best] efforts to
meet the Milestone Dates specified in the Statement of Work without any
extension or Fee increase. Customer shall not be deemed in breach of this
Agreement for failure to perform its obligations on a timely basis, and the
provisions of this Section 7.3 set forth Developer's sole and exclusive
remedy, and Customer's sole and exclusive liability, for Customer's failure to
perform its obligations under this Section 7.
Note: Effect of Customer Delays
8. [Pre-Delivery Testing.
8.1 Testing by Developer.Before delivering and installing any Software
Deliverable, Developer shall:
(a) test the Software component of such Software Deliverable
to confirm that it is fully operable, meets all applicable Specifications and will
function in accordance with the Specifications and Documentation when
properly installed in the Operating Environment;
(b) scan such Software Deliverable using the most up-to-date
scanning software and definitions to confirm it is free of Harmful Code;
(c) remedy any Non-Conformity or Harmful Code identified and
retest and rescan the Software Deliverable; and
(d) prepare, test and, as necessary, revise the Documentation
component of the Software Deliverable to confirm it is complete and
accurate and conforms to all requirements of this Agreement.
8.2 Customer Participation.Customer shall have the right to be present for
all pre-installation testing. Developer shall give Customer at least [NUMBER
IN WORDS] ([NUMBER]) days' prior notice of all such testing.]
Note: Pre-Delivery Testing
9. Delivery and Installation.
9.1 Delivery.Developer shall deliver each Deliverable[, and install all
Software,] on or prior to the Milestone Date therefor in accordance with the
delivery criteria set forth in Schedule [E] or such other criteria as may be set
forth for such Deliverable in the Statement of Work therefor. Developer shall
deliver each Software Deliverable, including complete Documentation in
compliance with Section 5 and, except to the extent the Statement of Work
specifies otherwise, the Source Code therefor. No Software Deliverable shall
be deemed to have been delivered or installed unless it complies with the
preceding sentence.
Note: Delivery
9.2 Site Preparation.[Customer/Developer] shall be responsible for ensuring
the relevant Operating Environment is set up and in working order to allow
Developer to deliver [and install] each Software Deliverable on or prior to
the Milestone Date therefor. Developer shall provide Customer with such
notice as is specified in Schedule [E], or such other notice as is specified for
such Software Deliverable in the Statement of Work therefor, prior to
delivery of each such Software Deliverable to give Customer sufficient time
to prepare for Developer's delivery [and installation ]of the Software
Deliverable. If Customer is responsible for Site preparation, Developer shall
provide such assistance as Customer [reasonably] requests to complete such
preparation on a timely basis.
Note: Site Preparation
10. Acceptance Testing; Acceptance.
Note: Acceptance Testing; Acceptance
10.1 Acceptance Testing.
(a) Upon delivery or, if Developer is responsible for installation,
installation of each Software Deliverable, Acceptance Tests shall be
conducted as set forth in this Section 10.1 to ensure the Software
Deliverable, including all Software and Documentation, conforms to the
requirements of this Agreement, including the applicable Specifications and,
in the case of the Software, the Documentation.
(b) All Acceptance Tests shall take place at the designated
Site(s) in the Operating Environment described in the Statement of Work for
the Software Deliverable, commence on the business day following delivery
or installation, as applicable, of such Software Deliverable and be conducted
diligently for up to [thirty (30)] days[, or such other period as may be set
forth in the relevant Statement of Work] ("Testing Period"). Acceptance
Tests shall be conducted by the party responsible therefor as set forth in the
applicable Statement of Work or, if the Statement of Work does not specify,
[Customer/Developer], provided that:
(i) for Acceptance Tests conducted by Customer, if
requested by Customer, Developer shall make
suitable Developer Personnel available to observe
or participate in such Acceptance Tests; and
(ii) for Acceptance Tests conducted by Developer,
Customer shall have the right to observe or
participate in all or any part of such Acceptance
Tests.
[Developer's performance of, participation in and observation of Acceptance
Testing shall be at Developer's sole cost and expense.]
Note: Acceptance Testing
(c) Upon delivery [and installation] of the Aggregate Software
under any Statement of Work, additional Acceptance Tests shall be
performed on the Aggregate Software as a whole to ensure full operability,
integration and compatibility among all elements of the Aggregate Software
("Integration Testing"). Integration Testing shall be subject to all
procedural and other terms and conditions set forth in Section 10.1, Section
10.3 and Section 10.4. [The scope of Integration Testing on any previously-
Accepted Software Deliverable shall be limited to ensuring full operability,
integration and compatibility and Customer shall not have the right to
condition its acceptance thereof on Developer's correction of any
nonconformity that could have been, but was not, identified by Customer
during initial testing of such Software Deliverable.]
Note: Integration Testing
(d) [Customer may suspend Acceptance Tests and the
corresponding Testing Period by written notice to Developer if Customer
discovers a [material] Non-Conformity in the tested Software Deliverable or
part or feature thereof. In such event, Developer shall immediately, and in
any case within [NUMBER IN WORDS] ([NUMBER]) days, correct such Non-
Conformity, whereupon the Acceptance Tests and Testing Period shall
resume for the balance of Testing Period.]
Note: Suspension of Acceptance Testing
10.2 Notices of Completion, Non-Conformities and Acceptance.[Within
[NUMBER IN WORDS] ([NUMBER]) following/Immediately upon] the
completion of any Acceptance Tests, including any Integration Testing, the
party responsible for conducting the tests shall prepare and provide to the
other party written notice of the completion of the tests. Such notice shall
include a report describing in reasonable detail the tests conducted and the
results thereof, including any uncorrected Non-Conformity in the tested
Software Deliverable(s).
(a) If such notice is provided by either party and identifies any
Non-Conformities, the parties' rights, remedies and obligations will be as set
forth in Section 10.3 and Section 10.4.
(b) If such notice is provided by Customer and identifies no
Non-Conformities, such notice shall constitute Customer's Acceptance of
such Software Deliverable or Aggregate Software.
(c) If such notice is provided by Developer and identifies no
Non-Conformities, Customer shall have [NUMBER IN WORDS] ([NUMBER])
days to [use such Software Deliverable in the Operating Environment and
determine, in the exercise of its [sole/reasonable] discretion, whether it is
satisfied that such Software Deliverable or Aggregate Software contains no
Non-Conformities, on the completion of which Customer shall, as
appropriate:
(i) notify Developer in writing of Non-Conformities
Customer has observed in the Software Deliverable
or, in the case of Integration Testing, Aggregate
Software, and of Customer's non-acceptance
thereof, whereupon the parties' rights, remedies
and obligations will be as set forth in Section 10.3
and Section 10.4; or ]
(ii) provide Developer with a written notice of its
Acceptance of such Software Deliverable or
Aggregate Software.
Note: Notices of Completion, Non-Conformities and Acceptance
10.3 Failure of Acceptance Tests.If Acceptance Tests identify any Non-
Conformities, Developer, at Developer's sole cost and expense, shall remedy
all such Non-Conformities and re-deliver the Software Deliverable(s), in
accordance with the applicable requirements set forth in Schedule [E] as
promptly as commercially possible and, in any case, within [NUMBER IN
WORDS] ([NUMBER]) days following, as applicable, its:
(a) completion of such Acceptance Tests, in the case of
Acceptance Tests conducted by Developer; or
(b) receipt of Customer's notice pursuant to Section 10.2(a)
identifying any Non-Conformities, in the case of Acceptance Tests conducted
by Customer.
Note: Failure of Acceptance Tests
10.4 Repeated Failure of Acceptance Tests.If Acceptance Tests identify any
Non-Conformity in any Software Deliverable after a second or subsequent
delivery thereof, or Developer fails to re-deliver the Software Deliverable on
a timely basis, Customer may, in its sole discretion, by written notice to
Developer:
(a) continue the process set forth in this Section 10;
(b) accept the Software Deliverable as a nonconforming
deliverable, in which case the Fees therefor shall be reduced equitably to
reflect the value of the Software Deliverable as received relative to the value
of the Software Deliverable had it conformed; or
(c) deem the failure to be a non-curable material breach of this
Agreement and the relevant Statement of Work and terminate this
Agreement and such Statement of Work in accordance with Section 17.3(b).
Note: Repeated Failure of Acceptance Tests
10.5 Acceptance.Acceptance ("Acceptance") of each Software Deliverable
(subject, where applicable, to Customer's right to Integration Testing) and
Aggregate Software shall occur on the date that is the earliest of:
(a) Customer's delivery of a notice accepting such Software
Deliverable pursuant to Section 10.2(b) or [Section 10.2(c)/Section
10.2(c)(ii)];
(b) Solely if Customer is responsible for performing such
Acceptance Tests or Integration Testing, Section 10.1(c)) upon the
expiration of the Testing Period therefor if Customer has not notified
Developer of one or more Non-Conformities prior thereto; or
(c) Solely if Developer is responsible for performing such
Acceptance Tests or Integration Tests, the number of days specified in
Section 10.2(c) after Customer receives Developer's Notice of Completion, if
Customer's fails to respond to such Notice of Completion prior to such date.
Note: Acceptance
11. [Source Code Escrow.[Concurrently herewith, the parties and [NAME OF
ESCROW AGENT] ("Escrow Agent") are entering into a Source Code
Escrow Agreement, a copy of which is/As soon as practicable after the
Effective Date but in no event later than Acceptance of the Aggregate
Software under the Initial Statement of Work, Developer and Customer shall
enter into a source code escrow agreement with [[NAME OF ESCROW
AGENT]/a mutually agreed third-party escrow agent] ("Escrow Agent").
Such Source Code Escrow Agreement shall be on the terms and conditions,
and in the form,] attached as Exhibit [4] ("Source Code Escrow
Agreement"). All terms and conditions set forth in Exhibit [4] form a part
of and by this reference are incorporated in this Agreement, and any breach
thereof by Developer shall constitute a breach of this Agreement.]
Note: Source Code and Escrow
12. Training; Maintenance and Support.
12.1 [Training.With respect to all Software, Developer shall provide
Customer with such training as is set forth in [Schedule [F]/the applicable
Statement of Work] in accordance with the training specifications, including
times and locations, set forth in Schedule [F] or such Statement of Work.
[Unless expressly provided in any Statement of Work, all training set forth in
Schedule [F] or such Statement of Work shall be provided at no additional
charge to Customer, it being acknowledged and agreed that the
development and other Fees include full consideration therefor.] Customer
may request, and if so requested Developer shall provide on a timely basis,
[additional] training at the rates specified in the Pricing Schedule.]
Note: Training
12.2 [Maintenance and Support.With respect to all Software, Developer shall
provide Customer with the Maintenance and Support Services set forth on
Schedule [G]. Such Maintenance and Support Services shall be provided:
(a) free of charge, during the Warranty Period, it being
acknowledged and agreed by the parties that the development and other
Fees include full consideration for such Services during such period; and
(b) thereafter, for so long as the Customer elects to receive
Support and Maintenance Service for such Software, in consideration of
Customer's payment of the Support Fee therefor as determined in
accordance with the rates set forth in the [Maintenance and Support
Schedule/Pricing Schedule].]
Note: Maintenance and Support
13. Fees and Reimbursable Expenses.
13.1 Fees.Subject to all terms and conditions set forth in this Section 13 and
Developer's performance of Services to Customer's [reasonable] satisfaction
and Customer's Acceptance of the applicable Deliverables, Customer shall
pay the fees set forth in the applicable Statement of Work ("Fees"). All such
Fees shall be determined in accordance with the fees, billing rates and
discounts ("Pricing") set forth in Schedule [H] (the "Pricing Schedule").
Note: Fees
13.2 [Firm Pricing/Fee Changes].
(a) [Except as provided in this Section 13.2, t/T]he Pricing set
forth in the Pricing Schedule is firm and shall not be modified during the
Term.
(b) [Subject to Section 13.2(c), Developer may increase
Pricing, effective on any anniversary of the Effective Date, provided,
however, that:
(i) no increase in Pricing made prior to the first
anniversary of the Support Commencement Date
for any Software shall apply with respect to
Maintenance and Support Services for such
Software; and
(ii) no increase in Pricing shall apply with respect to any
previously agreed Services or Work Product under
any Statement of Work executed before the
effective date of such increase.
(c) With respect to any increase in Pricing, Developer shall:
(i) give Customer at least [ninety] ([90]) days' prior
written notice of any such change; and
(ii) only increase Pricing to reflect its actual cost
increases and, in any case, not increase Pricing by
a percentage that exceeds [80% of] the
percentage by which the [then most-recently
published/[MONTH]] [SPECIFY CONSUMER PRICE
INDEX] "(CPI") exceeds the CPI as of the
Effective Date or, if later, the immediately
preceding change in such Billing Rate, if any.
No increase in Pricing shall be effective unless made fully in compliance with
the provisions of this Section 13.2.]
Note: Firm Pricing/Fee Changes
13.3 [Most Favored Pricing.At all times during the Term, the Fees, Pricing
and other charges hereunder shall be the lowest fees, prices and rates
contemporaneously charged by Developer to any of its customers for similar
volumes of goods and services of the same or comparable type and scope. If
at any time Developer charges any comparable customer a lower fee, rate or
price for similar volumes of such comparable goods or services than the
corresponding Fees, Pricing or other prices charged hereunder, Developer
shall immediately apply such lower rate or amount, as applicable, for all
comparable Deliverables, Services and other Work Product provided to
Customer. Such lower rates or amounts, as applicable, shall apply
retroactively to the date on which Developer began charging them to such
comparable customer.]
Note: Most Favored Pricing
13.4 [Reimbursable Expenses.Customer shall reimburse Developer, in
accordance with Customer's standard expense reimbursement policy in
effect from time to time[, a current copy of which is attached as Exhibit [5]
hereto,] for direct, documented, out-of-pocket [travel and lodging] expenses
("Reimbursable Expenses") incurred by Developer in performing its
obligations, subject to the following:
(a) [Customer shall only be obligated to reimburse Developer
for travel approved in advance by Customer.]
(b) All travel arrangements shall conform to Customer's
standard travel policy applicable to its employees in effect from time to time.
A copy of the current policy is attached as Exhibit [5] hereto.
(c) [Customer shall have the right to require that all travel
arrangements be made through Customer's in-house or contracted outside
travel agent.]
(d) [Any individual expense item in excess of $[DOLLAR
AMOUNT] shall require Customer's prior written approval.]
Notwithstanding the foregoing or anything else contained in this Agreement,
in no event shall license fees, royalties or other amounts incurred by
Developer to any Permitted Subcontractor or for any Third-Party Materials
be a Reimbursable Expense[, except to the extent expressly stated
otherwise in any Statement of Work for the Services or Work Product to be
provided thereunder.]]
Note: Reimbursable Expenses
14. Invoices and Payment.
14.1 Invoices.Developer shall invoice Customer for Fees and Reimbursable
Expenses in accordance with the invoicing schedule and requirements set
forth in Schedule [I]. Developer shall submit each invoice in [both hard copy
and] electronic format, via such delivery means and to such address as are
[set forth on Schedule [I] or otherwise] specified by Customer in writing
from time to time. If more than one Statement of Work is outstanding,
Developer shall provide an aggregate invoice for all Fees being invoiced,
together with separate invoices for each Statement of Work. Each separate
invoice shall:
(a) clearly identify the Statement of Work to which it relates, in
such manner as is required by Customer;
(b) list each Fee item and Reimbursable Expense separately;
(c) include sufficient detail for each line item to enable
Customer to verify the calculation thereof;
(d) [for Fees determined on a time and materials basis, report
details of time taken to perform Services, and such other information as
Customer requires, on a per-individual basis;]
(e) be accompanied by all [original] supporting documentation
required hereunder for Reimbursable Expenses; and
(f) include such other information as may be required by
Customer as set forth in Schedule [I] or the applicable Statement of Work.
Note: Invoices
14.2 Payment.
(a) Customer shall pay all properly invoiced Fees and
Reimbursable Expenses within [forty-five] ([45]) days after the later of:
(i) Customer's receipt of the proper invoice therefor; or
(ii) the due date for such amounts as set forth in the
applicable Statement of Work[, which for Fees
based on Developer's provision of a specified
Deliverable shall not be earlier than Customer's
Acceptance of such Deliverable].
(b) [Customer shall be entitled to a discount of [two percent
(2%)] of Fees (but not Reimbursable Expenses) paid within ten (10) days
following the due date determined pursuant to Section 14.2(a).]
(c) Customer may withhold from payment any amount disputed
by Customer in good faith, pending resolution of the dispute[./, provided
that Customer:
(i) timely pays all amounts not subject to dispute;
(ii) notifies Developer of the dispute prior to the due
date, specifying in such notice (A) the amount in
dispute, and (B) the reason for the dispute set out
in sufficient detail to facilitate investigation by
Developer and resolution by the parties;
(iii) works with Developer in good faith to resolve the
dispute promptly; and
(iv) promptly pays any amount determined to be due by
resolution of the dispute.]
Developer shall continue performing its obligations in accordance with this
Agreement notwithstanding any such dispute or actual or alleged
nonpayment that is the subject of the dispute, pending its resolution.
(d) All payments hereunder shall be in US dollars and made, at
Customer's option, by check or wire transfer. Payments shall be made to the
address or account specified in Schedule [I] or such other address or
account as is specified by Developer in writing from time to time, provided
that Developer shall give Customer at least [NUMBER IN WORDS]
([NUMBER]) days' prior notice of any account, address or other change in
payment instructions. Customer will not be liable for any late or misdirected
payment caused by Developer's failure to provide timely notice of any such
change.
Note: Payment Terms
14.3 Taxes.All fees set forth herein are [exclusive/inclusive] of taxes.
[Customer/Developer] shall be responsible for all sales, use and excise
taxes, and any other similar taxes, duties and charges of any kind imposed
by any federal, state or local governmental entity on any amounts payable
by Customer hereunder[ other than any taxes imposed on, or with respect
to, Developer's income, revenues, gross receipts, personnel or real or
personal property or other assets].
Note: Taxes
14.4 [Right of Set-off.Without prejudice to any other right or remedy it may
have, Customer reserves the right to set off at any time any amount owing
to it by Developer against any amount payable by Customer to Developer
under this Agreement [or otherwise].]
Note: Right of Set-off
14.5 [Audit Right.During the Term [and for [NUMBER] year[s] after],
Developer shall maintain complete and accurate books and records
regarding its business operations relevant to the calculation of Fees,
Reimbursable Expenses and any other information relevant to Developer's
representations, warranties and covenants under this Agreement. During the
Term [and for [NUMBER] year[s] after], upon Customer's request, Developer
shall make such books and records, and appropriate personnel, available
during normal business hours for inspection or audit by Customer or its
authorized representative, provided that Customer shall:
(a) provide Developer with [reasonable/at least [NUMBER]
days] prior notice of any audit;
(b) undertake an audit no more than once per calendar
[year/quarter/month]; and
(c) conduct or cause to be conducted such audit in a manner
designed to minimize disruption of Developer's normal business operations.
Customer may take copies and abstracts of materials audited[, provided that
such material shall be Confidential Information of Developer]. Customer will
pay the cost of such audits unless an audit reveals an overbilling or over-
reporting of five percent (5%) or more, in which case Developer shall
reimburse Customer for the [reasonable] cost of the audit. Developer shall
immediately upon notice from Customer pay Customer the amount of any
overpayment revealed by the audit, ]together with any reimbursement
pursuant to the preceding sentence.]
Note: Audit Right
15. Intellectual Property Rights.
Note: IP Rights
15.1 Customer Ownership of Work Product.
[Except as set forth in Section 15.3,] Customer is and will be the sole and
exclusive owner of all right, title and interest in and to all Work Product,
including all Intellectual Property Rights therein. In furtherance of the
foregoing[, subject to Section 15.3]:
(a) Developer shall create all Work Product as work made for
hire as defined in Section 101 of the Copyright Act of 1976; and
(b) to the extent any Work Product or Intellectual Property
Right therein does not qualify as, or otherwise fails to be, work made for
hire, Developer shall, and hereby does:
(i) assign, transfer and otherwise convey to Customer,
irrevocably and in perpetuity, throughout the
universe, all right, title and interest in and to such
Work Product, including all Intellectual Property
Rights therein; and
(ii) irrevocably waive any and all claims Developer may
now or hereafter have in any jurisdiction to so-
called "moral rights" or rights of droit moral with
respect to the Work Product.
Note: Customer Ownership of Work Product
15.2 Further Actions.Developer shall, and shall cause the Developer
Personnel to, take all appropriate action and execute and deliver all
documents, necessary or reasonably requested by Customer to effectuate
any of the provisions or purposes of Section 15.1, or otherwise as may be
necessary or useful for Customer to prosecute, register, perfect, record or
enforce its rights in or to any [Customer-Owned] Work Product or any
Intellectual Property Right therein. Developer hereby appoints Customer as
Developer's attorney-in-fact with full irrevocable power and authority to take
any such actions and execute any such documents if Developer refuses, or
within a period deemed reasonable by Customer otherwise fails, to do so.
15.3 [Background Technology, Approved Third-Party Materials and Open-
Source Components.
(a) [Developer is and will remain the sole and exclusive owner
of all right, title and interest in and to the Background Technology, including
all Intellectual Property Rights therein, subject to the license granted in
Section 16.1.]
Note: Background Technology
(b) [Ownership of all Approved Third-Party Materials, and all
Intellectual Property Rights therein, is and will remain with the respective
owners thereof, subject to any express licenses or sublicenses granted to
Customer pursuant to or in accordance with this Agreement.]
Note: Third-party Materials
(c) [Ownership of all Open-Source Components, and all
Intellectual Property Rights therein, is and will remain with the respective
owners thereof, subject to Customer's rights under the applicable Open-
Source Licenses.]]
Note: Open-source Components
15.4 Customer Materials.Customer and its licensors are and will remain the
sole and exclusive owners of all right, title and interest in and to the
Customer Materials, including all Intellectual Property Rights therein.
Developer shall have no right or license to, and shall not, use any Customer
Materials except solely during the Term of the Statement of Work(s) for
which they are provided to the extent necessary to perform the Services and
provide the Work Product to Customer. All other rights in and to the
Customer Materials are expressly reserved by Customer.
16. Licenses.
Note: Licenses
16.1 [Background Technology License.
Developer hereby grants to Customer such rights and licenses with respect
to the Background Technology that will allow Customer to use and otherwise
exploit perpetually throughout the universe for all or any purposes
whatsoever [the Work Product, to the same extent as if Customer owned]
the Background Technology, without incurring any fees or costs to Developer
(other than the Fees and Reimbursable Expenses set forth herein) or any
other Person in respect of the Background Technology. In furtherance of the
foregoing, such rights and licenses shall:
(a) be irrevocable, perpetual, fully paid-up and royalty-free;
(b) include the rights to use, reproduce, perform (publicly or
otherwise), display (publicly or otherwise), modify, improve, create
derivative works of, distribute, import, make, have made, sell and offer to
sell the Background Technology, including all such modifications,
improvements and derivative works thereof[, solely as part of, or as
necessary to use and exploit, the Work Product]; and
(c) be freely assignable and sublicensable[, in each case solely
in connection with the assignment or licensing of the Work Product or any
portion, modification or derivative work thereof, and only to the extent
necessary to allow the assignee or sublicensee, as the case may be, to use
and exploit the Work Product or portion, modification, improvement or
derivative work thereof].
Developer reserves all rights in the Background Technology not expressly
granted to Customer herein.]
Note: Background Technology License
16.2 Customer Materials.Customer hereby grants to Developer the limited,
royalty-free, non-exclusive right and license to Customer Materials solely as
necessary to incorporate such Customer Materials into, or otherwise use
such Customer Materials in connection with creating, the Work Product. The
term of such license shall commence upon Customer's delivery of the
Customer Materials to Developer, and shall terminate upon Customer's
acceptance or rejection of the Work Product to which the Customer Materials
relate. Subject to the foregoing license, Customer reserves all rights in the
Customer Materials. Customer Materials shall be deemed Customer's
Confidential Information.
16.3 [Approved Third-Party Materials.
(a) [Developer hereby grants, or prior to the delivery date for
any Deliverables under the Initial Statement of Work shall procure for
Customer the grant of, such licensed rights in the Approved Third-Party
Materials set forth in Schedule [C] as, as applicable, are described in such
Schedule [C] or set forth in each license agreement for such Approved Third-
Party Materials and attached as sequentially numbered attachments C-1, C-
2, etc.) to such Schedule [C].]
(b) [On or prior to the execution of each Statement of
Work/Not later than the date specified in any Statement of Work], Developer
shall secure for Customer, at Developer's sole cost and expense, such rights,
licenses, consents and approvals as are specified in Schedule [C] or such
Statement of Work.
(c) All royalties, license fees or other consideration payable in
respect of such licenses are included in the Fees specified in each Statement
of Work unless such Statement of Work expressly states otherwise. Any
additional amounts shall be the sole responsibility of Developer].]
Note: Approved Third-Party Materials
16.4 [Open-Source Components.Any use of the Open-Source Components
by the Customer will be governed by, and subject to, the terms and
conditions of the applicable Open-Source Licenses.]
Note: Open-Source Licenses
17. Term.
17.1 Term.The [initial] term ("[Initial] Term") of this Agreement
commences as of the Effective Date and, unless this Agreement is
terminated earlier pursuant to any of its express provisions, will continue in
effect until [NUMBER IN WORDS] ([NUMBER]) year[s] from such date.
Note: Term
17.2 [Renewal.Following expiration of the Initial Term, [Customer may
renew this Agreement for additional successive terms (each a "Renewal
Term" and, collectively, together with the Initial Term, the "Term") by
providing the Developer with written notice/this Agreement will
automatically renew for [up to [NUMBER IN WORDS] ([NUMBER])] additional
successive terms (each a "Renewal Term" and, collectively, together with
the Initial Term, the "Term") unless and until [either party/ Customer]
provide[s] written notice of non-renewal] at least [NUMBER IN WORDS]
([NUMBER]) days prior to the end of the Initial Term or then-current
Renewal Term. Each Renewal Term will commence immediately on
expiration of the Initial Term or preceding Renewal Term and, unless this
Agreement is terminated earlier pursuant to any of its express provisions,
continue in effect for [NUMBER IN WORDS] ([NUMBER]) year[s] from such
date.
Note: Renewal
17.3 Termination.
(a) Customer may terminate, at any time without cause, and
without incurring any additional obligation, liability or penalty:
(i) this Agreement, by written notice to Developer;
(ii) Maintenance and Support Services for all or any
Software, by providing at least [NUMBER IN
WORDS] ([NUMBER]) days' prior written notice to
Developer; or
(iii) except as may be set forth in therein, any Statement
of Work, by providing at least [NUMBER IN
WORDS] ([NUMBER]) days' prior written notice to
Developer.
Note: Termination for Convenience
(b) Either party may terminate this Agreement, the
Maintenance and Support Services and any outstanding Statement[s] of
Work, effective upon written notice to the other party, if the other party
[materially] breaches this Agreement, Maintenance and Support Services or
such Statement[s] of Work, and such breach:
(i) is incapable of cure; or
(ii) being capable of cure, remains uncured [NUMBER IN
WORDS] ([NUMBER]) days after the breaching
party receives written notice thereof.
(c) Either party may terminate this Agreement, the
Maintenance and Support Services and all Statements of Work by written
notice to the other party if the other party:
(i) becomes insolvent or admits inability to pay its debts
generally as they become due;
(ii) becomes subject, voluntarily or involuntarily, to any
proceeding under any domestic or foreign
bankruptcy or insolvency law, which is not fully
stayed within [seven/[OTHER NUMBER]]
(7/[OTHER NUMBER]) business days or is not
dismissed or vacated within [forty-five/[OTHER
NUMBER]] (45/[OTHER NUMBER]) days after filing;
(iii) is dissolved or liquidated or takes any corporate
action for such purpose;
(iv) makes a general assignment for the benefit of
creditors; or
(v) has a receiver, trustee, custodian or similar agent
appointed by order of any court of competent
jurisdiction to take charge of or sell any material
portion of its property or business.
Note: Termination For Cause
17.4 Effect of Expiration or Termination.
(a) Termination of this Agreement shall not effectuate a
termination of Maintenance and Support Services or any Statement of Work
then in effect and not otherwise expressly terminated, and the terms and
conditions set forth herein shall continue in effect with respect to any such
Maintenance and Support Services and Statements of Work until their
expiration or termination as set forth herein.
Note: Effect of Expiration or Termination
(b) Upon any expiration or termination of any Maintenance and
Support Services or Statement of Work:
(i) Developer shall (A) with respect to termination of a
Statement of Work, promptly deliver to Customer
all Work Product generated by Developer under
such Statement of Work (whether complete or
incomplete); (B) provide reasonable cooperation
and assistance to Customer [upon Customer's
written request and at Customer's expense ] in
transitioning the Services to an alternate service
provider, and (C) on a pro rata basis, repay all
amounts, if any, paid in advance for any Services
or Work Product that have not been provided.
(ii) All licenses granted to Developer in the Customer
Materials with respect to such Services or
Statement of Work shall immediately and
automatically also terminate, and Developer shall
promptly return to Customer all Customer
Materials not required by Developer for continuing
Maintenance and Support Services or Statement of
Work hereunder, if any.
(iii) Developer shall (A) return to Customer all
documents and tangible materials (and any copies)
containing, reflecting, incorporating or based on
Customer's Confidential Information, (B)
permanently erase Customer's Confidential
Information from its computer systems and (C)
certify in writing to Customer that it has complied
with the requirements of this Section 17.4(b)(iii),
in each case to the extent such materials are not
required by Developer for continuing Maintenance
and Support Services or Statement of Work
hereunder, if any.
Note: Return of Confidential Information
(c) If Customer terminates any Maintenance and Support
Services or Statement of Work pursuant to Section 17.3(b), Customer shall
be relieved of any obligation to pay any Fees thereunder[, and Developer
shall promptly refund to Customer all Fees previously paid in respect
thereof. In such event, Customer shall not retain any rights in or to the
Deliverables thereunder (other than Customer Materials)].
Note: Effect of Termination by the Customer for Cause (other than
Bankruptcy)
(d) Except as set forth in Section 17.4(c), if this Agreement
terminates early Customer will remain obligated to pay Fees for all Services
and Work Product received before the effective date of such termination.
Note: Effective of Termination by Customer for Convenience or the
Developer's Bankruptcy
(e) [Except as set forth in Section 17.4(c)[, no/No] expiration
or termination of this Agreement will affect Customer's rights in any of the
Deliverables.
Note: Rights to Work Product
17.5 Survival.The rights and obligations of the parties set forth in this
Section 17.5 and Section 1, Section 15, Section 16.1, Section 16.3, Section
16.4, Section 18, Section 19, Section 21 and Section 22, and any right or
obligation of the parties in this Agreement which, by its express terms or
nature and context is intended to survive termination or expiration of this
Agreement, will survive any such termination or expiration.
18. Representations and Warranties.
Note: Representations and Warranties
18.1 Mutual Representations and Warranties.
Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as
a corporation or other entity as represented herein under the laws and
regulations of its jurisdiction of incorporation, organization or chartering;
(b) it has the full right, power and authority to enter into this
Agreement, to grant the rights and licenses granted hereunder and to
perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose
signature is set forth at the end hereof has been duly authorized by all
necessary [corporate/organizational] action of the party; and
(d) when executed and delivered by both parties, this
Agreement will constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms.
Note: Mutual Representations and Warranties
18.2 Additional Representations and Warranties.Developer represents and
warrants to Customer that:
(a) it will perform all Services in a professional and
workmanlike manner in accordance with [best/generally
recognized/commercially reasonable] industry standards and practices for
similar services, using personnel with the requisite skill, experience and
qualifications, and shall devote adequate resources to meet its obligations
under this Agreement;
Note: Professional and Workmanlike Manner
(b) It is in compliance with, and will perform all Services in
compliance with, all applicable Law;
Note: Compliance with Law
(c) Customer will receive good and valid title to all Customer-
Owned Work Product, free and clear of all encumbrances and liens of any
kind;
(d) When delivered [and installed by Developer], no Software
Deliverable will contain any Harmful Code;
(e) The Software will not contain, or operate in such a way that
it is compiled with or linked to, any Open-Source Components other than
Approved Open-Source Components;
(f) Except as may be expressly approved by Customer and
disclosed in the Statement of Work therefor, the Software will not contain
any Controlled Technology;
(g) All Work Product, including all updates, upgrades, new
versions, new releases, enhancements, improvements and other
modifications thereof, but excluding Customer Materials, Approved Third-
Party Materials and Open-Source Components, is or will be the original
creation of Developer;
(h) As delivered, installed, specified or approved by Developer
and used by Customer or any Third Party authorized by Customer[, in
accordance with this Agreement and the Documentation], the Work Product
(excluding Customer Materials): (i) will not infringe, misappropriate or
otherwise violate any Intellectual Property Right or other right of any third
party; and (ii) will comply with all applicable Laws[./; and]
(i) [No expiration or loss of any patent or application for patent
rights in the work product is pending, or, to Developer's knowledge after
reasonable inquiry, threatened or reasonably foreseeable, and Developer has
no reason to believe that any claims of any such patent or patent application
are or will be invalid, unenforceable, fail to issue, or be materially limited or
restricted beyond the current claims, except for patent rights expiring at the
end of their statutory term.]
Note: No Infringement
18.3 Performance Warranty and Limited Remedy.
(a) Developer warrants that during the Warranty Period
therefor:
(i) all Software will be, and as installed in the Operating
Environment (or any successor thereto) and used
in accordance with the Documentation will function
in all respects, in conformity with this Agreement
and the Specifications and Documentation
therefor; and
(ii) any media on which any Software Deliverable is
delivered will be free of damage or defect in
design, material and workmanship, and will remain
so under ordinary use as contemplated by this
Agreement and the Specifications and, with
respect to the Software component thereof, the
Documentation therefor.
Note: Performance Warranty
(b) If the Developer breaches any of the warranties set forth in
Section 18.3(a) Developer shall, upon written notice from Customer and at
Developer's sole cost and expense, remedy such breach in accordance with
the Maintenance and Support Schedule, including the time periods set forth
therein. In the event Developer fails to remedy such breach on a timely
basis, Customer shall be entitled to such remedies as are specified in the
Maintenance and Support Schedule or as may otherwise be available under
this Agreement, at law or in equity for breach of its Maintenance and
Support obligations. Nothing in this Section 18.3(b) shall limit Customer's
right to indemnification pursuant to Section 19.1.
Note: Limited Remedy
18.4 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT
TO THIS AGREEMENT.
Note: Disclaimer
19. Indemnification.
Note: Indemnification
19.1 General Indemnification.Developer shall defend, indemnify and hold
harmless Customer and Customer's [Affiliates, and each of their respective]
officers, directors, employees, agents, successors and assigns (each, a
"Customer Indemnitee") from and against all any and all losses,
damages, liabilities, deficiencies, claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs, or expenses of whatever kind,
including [reasonable] attorneys' fees, fees and the cost of enforcing any
right to indemnification hereunder and the cost of pursuing any insurance
providers that are incurred by a Customer Indemnitee ("Losses") arising
out of or resulting from any third party claim, suit, action or proceeding
(each, an "Action") that arises out of or results from:
(a) Developer's breach of any representation, warranty,
covenant or obligation of Developer (including any action or failure to act by
any Permitted Subcontractor that, if taken or not taken by Developer, would
constitute such a breach by Developer) under this Agreement; or
(b) any [action or failure to take a required
action/negligence/gross negligence] or more culpable act or omission
(including recklessness or willful misconduct) in connection with the
performance or activity required by or conducted in connection with this
Agreement by Developer or any Permitted Subcontractor in connection with
performing Services under this Agreement.
Note: General Indemnification
19.2 Indemnification Procedure.Customer will promptly notify Developer in
writing of any Action for which it seeks to be indemnified pursuant to Section
19.1 and cooperate with Developer at Developer's sole cost and expense.
Developer shall immediately take control of the defense and investigation of
such Action and shall employ counsel [of its choice/reasonably acceptable to
Customer] to handle and defend the same, at Developer's sole cost and
expense. Developer shall not settle any Action in a manner that adversely
affects the rights of Customer or any Customer Indemnitee without
Customer's prior written consent[, which shall not be unreasonably withheld
or delayed]. Customer's failure to perform any obligations under this Section
19.2 will not relieve Developer of its obligations under this Section 19.1
except to the extent that Developer can demonstrate that it has been
[materially] prejudiced as a result of such failure. Customer may participate
in and observe the proceedings at its own cost and expense with counsel of
its own choosing.
Note: Indemnification Procedure
19.3 Infringement Remedy.
(a) If any Software or any component thereof, other than
Customer Materials, is found to be infringing or if any use of any Software or
any component thereof is enjoined, threatened to be enjoined or otherwise
the subject of an infringement claim, Developer shall, at Developer's sole
cost and expense:
(i) procure for Customer the right to continue to use such
Software or component thereof to the full extent
contemplated by this Agreement; or
(ii) modify or replace the materials that infringe or are
alleged to infringe ("Allegedly Infringing
Materials") to make the Software and all of its
components non-infringing while providing fully
equivalent features and functionality.
(b) If neither of the foregoing is possible notwithstanding
Developer's [best/commercially reasonable] efforts then Developer may
direct Customer to cease any use of any materials that have been enjoined
or finally adjudicated as infringing, provided that Developer shall:
(i) refund to Customer all amounts paid by Customer in
respect of such Allegedly Infringing Materials [and
any other aspects of the Aggregate Software
provided under the Statement of Work for the
Allegedly Infringing Materials that Customer
cannot reasonably use as intended under this
Agreement]; and
(ii) in any case, at its sole cost and expense, secure the
right for Customer to continue using the Allegedly
Infringing Materials for a transition period of up to
[NUMBER IN WORDS] ([NUMBER]) month[s] to
allow Customer to replace the affected features of
the Software without disruption.
(c) If developer directs Customer to cease using any Software
pursuant to Section 19.3(b), Customer shall have the right to terminate any
or all then-outstanding Statements of Work [and this Agreement] for cause
pursuant to Section 17.3(b)(i).
(d) The remedies set forth in this Section 19.3 are in addition
to, and not in lieu of[, all other remedies that may be available to Customer
under this Agreement or otherwise, including] Customer's right to be
indemnified for such Actions.
Note: Infringement Remedy
20. [Limitations of Liability.
Note: Limitations of Liability
20.1 EXCLUSION OF INDIRECT DAMAGES.EXCEPT AS OTHERWISE
PROVIDED IN Section 20.3, IN NO EVENT WILL EITHER PARTY BE LIABLE
UNDER THIS AGREEMENT, INCLUDING ANY STATEMENT OF WORK, FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR
PUNITIVE DAMAGES.
Note: Exclusion of Indirect Damages
20.2 CAP ON MONETARY LIABILITY.EXCEPT AS OTHERWISE PROVIDED IN
Section 20.3, IN NO EVENT WILL EITHER PARTY'S LIABILITY UNDER [THIS
AGREEMENT/ANY STATEMENT OF WORK], EXCEED [[NUMBER IN WORDS]
([NUMBER]) TIMES] THE AGGREGATE FEES AND REIMBURSABLE EXPENSES
UNDER [THIS AGREEMENT/SUCH STATEMENT OF WORK] (INCLUDING
AMOUNTS ALREADY PAID AND AMOUNTS THAT HAVE ACCRUED BUT NOT
YET BEEN PAID) [IN THE [NUMBER] [YEARS/MONTHS] PRECEDING THE
EVENT GIVING RISE TO THE CLAIM].
Note: Cap on Monetary Liability
20.3 [Exceptions.The exclusions and limitations in Section 20.1 and Section
20.2 shall not apply to:
(a) Losses arising out of or relating to a party's failure to
comply with its obligations under Section 15 (Intellectual Property Rights;
Ownership) or Section 21 (Confidentiality);
(b) a party's indemnification obligations under Section 19
(Indemnification);
(c) Losses arising out of or relating to a party's gross
negligence, willful misconduct or intentional acts;
(d) Losses for death, bodily injury or damage to real or tangible
personal property arising out of or relating to a party's negligent or more
culpable acts or omissions;
(e) Losses to the extent covered by a party's insurance[; or
(f) a party's obligation to pay attorneys' fees and court costs in
accordance with Section 22.17].]
Note: Exceptions
21. Confidentiality.
21.1 Obligation of Confidentiality.[Developer/Each party (the "Receiving
Party")] acknowledges that in connection with this Agreement
[Developer/such party] will gain access to Confidential Information of
[Customer/the other party (the "Disclosing Party")]. As a condition to
being furnished with Confidential Information, [Developer/the Receiving
Party] agrees, during the Term [and for [NUMBER IN WORDS] ([NUMBER])
years thereafter], to:
(a) not use the [Disclosing Party's] Confidential Information
other than as strictly necessary to [exercise its rights and] perform its
obligations under this Agreement;
(b) not use any of the [Disclosing Party's] Confidential
Information, directly or indirectly, in any manner to the detriment of
[Customer/the Disclosing Party] or to obtain any competitive benefit with
respect to [Customer/the Disclosing Party]; and
(c) [maintain the [Disclosing Party's] Confidential Information
in strict confidence and, subject to Section 21.2 below, not disclose the
[Disclosing Party's] Confidential Information without [the Disclosing Party's/
Customer's] prior written consent], provided, however, that [Developer/the
Receiving Party] may disclose the Confidential Information to its
Representatives who: (i) have a "need to know" for purposes of
[Developer's/the Receiving Party's] performance, or exercise of its rights
with respect to such Confidential Information, under this Agreement; (ii)
have been apprised of this restriction; and (iii) are themselves bound by
written nondisclosure agreements at least as restrictive as those set forth in
this Section 21.1, provided, further, that [Developer/The Receiving Party]
shall be responsible for ensuring its Representatives' compliance with, and
shall be liable for any breach by its Representatives, of this Section 21.
[Developer/The Receiving Party] shall use reasonable care, at least as
protective as the efforts it uses with respect to its own confidential
information, to safeguard the [Customer's/Disclosing Party's] Confidential
Information from use or disclosure other than as permitted hereby.
21.2 Exceptions.
(a) If [Developer/the Receiving Party] becomes legally
compelled to disclose any Confidential Information, [Developer/the
Receiving Party] shall:
(i) provide prompt written notice to [Customer/the
Disclosing Party] so that [Customer/the Disclosing
Party] may seek a protective order or other
appropriate remedy or waive its rights under this
Section 21; and
(ii) disclose only the portion of Confidential Information
that it is legally required to furnish.
If a protective order or other remedy is not obtained, or [Customer/the
Disclosing Party] waives compliance, [Developer/the Receiving Party] shall
[at [Customer's/the Disclosing Party's] expense,] use reasonable efforts to
obtain assurance that confidential treatment will be afforded the Confidential
Information.
Note: Confidentiality
22. Miscellaneous.
22.1 Effect of Developer Bankruptcy.All rights and licenses granted by
Developer under this Agreement are and shall be deemed to be rights and
licenses to "intellectual property," and all Work Product is and shall be
deemed to be "embodiment[s]" of "intellectual property", for purposes of,
and as such terms are used in and interpreted under, Section 365(n) of the
United States Bankruptcy Code (the "Code"). If Developer or its estate shall
become subject to any bankruptcy or similar proceeding, Customer shall
retain and have the right to fully exercise all rights, licenses, elections and
protections under this Agreement[, the Escrow Agreement], the Code and all
other applicable bankruptcy, insolvency and similar Laws with respect to all
Software and other Work Product. Without limiting the generality of the
foregoing, Developer acknowledges and agrees that, if Developer or its
estate shall become subject to any bankruptcy or similar proceeding:
(a) all rights and licenses granted to Customer hereunder shall
continue subject to the terms and conditions of this Agreement[ and the
Escrow Agreement], and shall not be affected, even by Developers rejection
of this Agreement;
(b) Customer shall be entitled to a complete duplicate of (or
complete access to, as appropriate) all such intellectual property and
embodiments of intellectual property comprising or relating to any Software
or other Work Product, and the same, if not already in Customer's
possession, shall be promptly delivered to Customer, unless Developer
elects to and does in fact continue to perform all of its obligations under this
Agreement[./;
(c) the automatic stay under Section 362 of the Code shall not
apply to any instructions from Customer to the Escrow Agent relating to the
escrow deposit materials; and
(d) the Escrow Agreement is supplementary to this Agreement,
and all escrow deposit materials are and shall be deemed to be intellectual
property or embodiments of intellectual property, within the meaning of
Section 365(n) of the Code, and Customer shall have all rights, elections and
protections under the Code with respect thereto.]
Note: Effect of Developer Bankruptcy
22.2 Force Majeure.Neither party shall be liable or responsible to the other
party, nor be deemed to have defaulted under or breached this Agreement,
for any failure or delay in fulfilling or performing any term of this
Agreement, when and to the extent such failure or delay is caused by:
(a) acts of God;
(b) flood, fire or explosion;
(c) war, terrorism, invasion, riot or other civil unrest;
(d) embargoes or blockades in effect on or after the date of this
Agreement;
(e) national or regional emergency;
(f) [strikes, labor stoppages or slowdowns or other industrial
disturbances;]
(g) [any passage of law or governmental order, rule, regulation
or direction, or any action taken by a governmental or public authority,
including imposing an embargo, export or import restriction, quota or other
restriction or prohibition; or]
(h) [national or regional shortage of adequate power or
telecommunications or transportation facilities].
(each of the foregoing, a "Force Majeure"), in each case, provided that (i)
such event is outside the reasonable control of the affected party; (ii) the
affected party provides prompt notice to the other party, stating the period
of time the occurrence is expected to continue; and (iii) the affected party
uses diligent efforts to end the failure or delay and minimize the effects of
such Force Majeure Event. Customer may terminate this Agreement if a
Force Majeure Event affecting Developer continues substantially
uninterrupted for a period of [thirty (30)] days or more. Unless Customer
terminates this Agreement pursuant to the preceding sentence, all Milestone
Dates shall automatically be extended for a period up to the duration of the
Force Majeure Event.
Note: Force Majeure
22.3 Further Assurances.Upon a party's [reasonable] request, the other
party shall, at such other party's sole cost and expense, [promptly] execute
all such further documents and instruments, and take all such further
actions, necessary to give full effect to this Agreement.
22.4 Relationship of the Parties.The relationship between the parties is that
of independent contractors. Nothing contained in this Agreement shall be
construed as creating any agency, partnership, joint venture or other form
of joint enterprise, employment or fiduciary relationship between the parties,
and neither party shall have authority to contract for or bind the other party
in any manner whatsoever.
Note: Relationship of the Parties
22.5 Public Announcements.Neither party shall issue or release any
announcement, statement, press release or other publicity or marketing
materials relating to this Agreement or, unless expressly permitted under
this Agreement, otherwise use the other party's trademarks, services marks,
trade names, logos, domain names or other indicia of source, association or
sponsorship, in each case, without the prior written consent of the other
party[, which shall not be unreasonably withheld or delayed].
22.6 Notices.All notices, requests, consents, claims, demands, waivers and
other communications hereunder shall be in writing and addressed to the
parties as follows (or as otherwise specified by a party in a notice given in
accordance with this Section):

If to Developer: [DEVELOPER ADDRESS]
Facsimile: [FAX NUMBER]
[E-mail: [NOTICES CONTACT'S E-MAIL ADDRESS]]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]
If to Customer: [CUSTOMER ADDRESS]
Facsimile: [FAX NUMBER]
[E-mail: [NOTICES CONTACT'S E-MAIL ADDRESS]]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]

Notices sent in accordance with this Section shall be deemed effectively
given: (a) when received, if delivered by hand (with written confirmation of
receipt); (b) when received, if sent by a nationally recognized overnight
courier (receipt requested); (c) on the date sent by facsimile [or e-mail] ([in
each case, ]with confirmation of transmission), if sent during normal
business hours of the recipient, and on the next business day, if sent after
normal business hours of the recipient; or (d) on the [NUMBER] day after
the date mailed, by certified or registered mail, return receipt requested,
postage prepaid.
Note: Notices
22.7 Interpretation.For purposes of this Agreement: (a) the words "include,"
"includes" and "including" are deemed to be followed by the words "without
limitation"; (b) the word "or" is not exclusive; (c) the words "herein,"
"hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a
whole; (d) words denoting the singular have a comparable meaning when
used in the plural, and vice-versa; and (e) words denoting any gender
include all genders. Unless the context otherwise requires, references in this
Agreement: (x) to Sections, Schedules and Exhibits refer to the Sections of,
and Schedules and Exhibits attached to, this Agreement; (y) to an
agreement, instrument or other document means such agreement,
instrument or other document as amended, supplemented and modified
from time to time to the extent permitted by the provisions thereof; and (z)
to a statute means such statute as amended from time to time and includes
any successor legislation thereto and any regulations promulgated
thereunder. The parties intend this Agreement to be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting an instrument or causing any instrument to be
drafted. The Schedules and Exhibits referred to herein are an integral part of
this Agreement to the same extent as if they were set forth verbatim herein.
Note: Interpretation
22.8 Headings.The headings in this Agreement are for reference only and
shall not affect the interpretation of this Agreement.
22.9 Entire Agreement.This Agreement, together with all Schedules, Exhibits
and Statements of Work and any other documents incorporated herein by
reference, constitutes the sole and entire agreement of the parties to this
Agreement with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with respect to such
subject matter. In the event of any inconsistency between the statements
made in the body of this Agreement, the Schedules, Exhibits, Statements of
Work and any other document, the following order of precedence governs:
[(a) first, this Agreement, excluding its Exhibits, Schedules and Statements
of Work; (b) second, the Exhibits and Schedules to this Agreement as of the
Effective Date; (c) third, any Statement of Work executed after the Effective
Date; [and] (d) fourth, any other documents incorporated herein by
reference.]
Note: Entire Agreement
22.10 Assignment.Developer shall not assign or otherwise transfer any of its
rights, or delegate or otherwise transfer any of its obligations or
performance, under this Agreement, in each case whether voluntarily,
involuntarily, by operation of law or otherwise, without Customer's prior
written consent[, which consent Customer [shall not unreasonably withhold
or delay/may give or withhold in its sole discretion]]. [For purposes of the
preceding sentence, and without limiting its generality, any merger,
consolidation or reorganization involving Developer (regardless of whether
Developer is a surviving or disappearing entity) will be deemed to be a
transfer of rights, obligations or performance under this Agreement for
which Customer's prior written consent is required.] No delegation or other
transfer will relieve Developer of any of its obligations or performance under
this Agreement. Any purported assignment, delegation or transfer in
violation of this Section 22.10 is void. Customer may freely assign or
otherwise transfer all or any of its rights, or delegate or otherwise transfer
all or any of its obligations or performance, under this Agreement without
Developer's consent. This Agreement is binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
Note: Assignment
22.11 No Third-Party Beneficiaries.This Agreement is for the sole benefit of
the parties hereto and their respective successors and permitted assigns and
nothing herein, express or implied, is intended to or shall confer on any
other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
Note: No Third-party Beneficiaries
22.12 Amendment and Modification; Waiver.No amendment to or
modification of [or rescission, termination or discharge of] this Agreement is
effective unless it is in writing[, identified as an amendment to [or
rescission, termination or discharge of] this Agreement] and signed by [an
authorized representative of] both parties. No waiver by any party of any of
the provisions hereof shall be effective unless explicitly set forth in writing
and signed by the party so waiving. Except as otherwise set forth in this
Agreement, no failure to exercise, or delay in exercising, any right, remedy,
power or privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
Note: Amendment and Modification; Waiver
22.13 Severability.If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in
any other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or unenforceable, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner
in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
Note: Severability
22.14 Governing Law; Submission to Jurisdiction.
(a) This Agreement and all related documents[, and all matters
arising out of or relating to this Agreement,] are governed by, and construed
in accordance with, the laws of the State of [STATE], United States of
America [(including [APPLICABLE STATE CHOICE OF LAW STATUTE(S)])] [,
without regard to the conflict of laws provisions thereof to the extent such
principles or rules would require or permit the application of the laws of any
jurisdiction other than those of the State of [STATE]]. [Neither the United
Nations Convention on the International Sale of Goods nor the Uniform
Computer Information Transactions Act shall have any application to this
Agreement.]
(b) Any legal suit, action or proceeding arising out of [or related
to] this Agreement or the licenses granted hereunder [shall] be instituted
[exclusively] in the federal courts of the United States or the courts of the
State of [STATE] in each case located in the city of [CITY] and County of
[COUNTY], and each party irrevocably submits to the [exclusive] jurisdiction
of such courts in any such suit, action or proceeding. Service of process,
summons, notice or other document by mail to such party's address set
forth herein shall be effective service of process for any suit, action or other
proceeding brought in any such court.
Note: Governing Law; Submission to Jurisdiction
22.15 [Waiver of Jury Trial.Each party irrevocably and unconditionally
waives any right it may have to a trial by jury in respect of any legal action
arising out of or relating to this Agreement or the transactions contemplated
hereby.]
Note: Waiver of Jury Trial
22.16 Equitable Relief.Each party acknowledges that a breach by a party of
Section 15 (Intellectual Property Rights; Ownership) or Section 21
(Confidentiality) may cause the non-breaching party immediate and
irreparable harm, for which an award of damages would not be adequate
compensation and agrees that, in the event of such breach or threatened
breach, the non-breaching party will be entitled to equitable relief, including
in the form of orders for preliminary or permanent injunction, specific
performance and any other relief that may be available from any court. Such
remedies shall not be deemed to be exclusive but shall be in addition to all
other remedies available under this Agreement, at law or in equity, subject
to any express exclusions or limitations in this Agreement to the contrary.
Note: Equitable Relief
22.17 [Attorneys' Fees.In the event that any action, suit, or other legal or
administrative proceeding is instituted or commenced by either party hereto
against the other party arising out of [or related to] this Agreement, the
prevailing party shall be entitled to recover its [reasonable/actual] attorneys'
fees and court costs from the non-prevailing party.]
Note: Attorneys' Fees
22.18 Counterparts.This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall be
deemed to be one and the same agreement. A signed copy of this
Agreement delivered by facsimile[, e-mail or other means of electronic
transmission (to which a signed PDF copy is attached)] shall be deemed to
have the same legal effect as delivery of an original signed copy of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
[DEVELOPER NAME]

By_____________________

Name:
Title:
[CUSTOMER NAME]

By_____________________

Name:
Title:
SCHEDULE A
[RELATIONSHIP MANAGERS]
SCHEDULE B
[BUSINESS REQUIREMENTS
SPECIFICATION/INITIAL STATEMENT OF WORK]
SCHEDULE C
[APPROVED THIRD-PARTY MATERIALS AND
APPROVED OPEN-SOURCE COMPONENTS]
SCHEDULE [D]
DOCUMENTATION CRITERIA
SCHEDULE [E]
DELIVERY, TESTING AND ACCEPTANCE CRITERIA
SCHEDULE [F]
TRAINING
SCHEDULE [G]
MAINTENANCE AND SUPPORT
SCHEDULE [H]
PRICING SCHEDULE, REIMBURSABLE EXPENSES
AND INVOICING
SCHEDULE [I]
DISPUTE RESOLUTION PROCEDURE
EXHIBIT 1
[CUSTOMER'S RFP AND DEVELOPER'S PROPOSAL]
EXHIBIT [2]
[FORM OF STATEMENT OF WORK]
EXHIBIT [3]
[FORM OF CONFIDENTIALITY AND PROPRIETARY
RIGHTS AGREEMENT]
EXHIBIT [4]
[[FORM OF] SOURCE CODE ESCROW
AGREEMENT/SOURCE CODE ESCROW
REQUIREMENTS]
EXHIBIT [5]
[CUSTOMER EXPENSE REIMBURSEMENT AND
TRAVEL POLICIES]