Software development and maintenance agreement (standard)
This is a standard software development and maintenance agreement which offers some flexibility without being too long or too detailed.
Distinct provisions in the document cover the development process for the software, any set-up services that may be provided to the customer, the testing of the software by the customer, the assignment of rights in the software to the customer, and the licensing of rights in third party materials to the customer.
The software maintenance provisions are set out in a clause in the main body of the agreement, with more details being provided in an optional service level schedule.
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Software development and maintenance agreement (standard) contents
- Definitions: definitions.
- Term: commencement of term; end of term.
Development Services: obligation to provide development services; timetable for software development and delivery; delays in development services consequent upon second party delays; software development coding standards; keep second party informed of development services progress; availability of software to second party during development. Set Up Services: obligation to provide set up services; set up services timetable; delays in set up services consequent upon second party delays; software set up services and intellectual property rights.
- Acceptance procedure: obligation to carry our acceptance tests; licence to conduct software acceptance tests; assistance with acceptance tests; notification of results of acceptance tests; software deemed to pass acceptance tests; information upon notice of failure to pass acceptance tests; consequences of software acceptance test failure; number of acceptance testing rounds; consequences of acceptance of software.
- Assignment: assignment of IPR on acceptance with full title guarantee option; assignment of owned IPR in software on acceptance; assignment for full term of rights; assignment includes right to claim for past infringements.
Third Party Materials: licensing of third party materials (software). Maintenance Services: software maintenance services provision (from delivery); standard of maintenance services; maintenance services in accordance with SLA; updates warranty (first party application); updates warranty (second party application); suspension of maintenance services; termination of maintenance services for convenience; consequences of termination of maintenance services; assignment of intellectual property rights in update; software includes updates.
- Customerobligations: general second party obligations; access to computer systems.
- Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
- Expenses: obligation to reimburse expenses; collection of evidence of expenses; supply of evidence of expenses.
- Timesheets: obligation to keep timesheets; obligation to supply timesheets.
- Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
- Confidentiality obligations: first party confidentiality undertaking; second party confidentiality undertaking; disclosure of confidential information to certain persons; exceptions to confidentiality obligations; disclosures of confidential information mandated by law etc; parties to stop using confidential information upon termination; parties to return or destroy confidential information following termination; confidentiality obligations after termination.
- Warranties: first party general warranties; software licence warranties; warranty of legality of software and documentation; software and documentation IPR infringement warranty; breach of software infringement warranty; second party warranty of authority; exclusion of implied warranties and representations.
- Acknowledgements and warranty limitations: software not error free; software not entirely secure; software compatibility is limited; no legal etc advice with software.
- Indemnities: indemnity upon breach: any provision or specified provisions (with definition); conditions upon first party indemnity; indemnity upon breach: any provision or specified provisions (with definition); conditions upon second party indemnity; limitations of liability vs indemnities.
- Limitations and exclusions of liability: caveats to limits of liability; interpretation of limits of liability; no liability for force majeure; no liability for loss of profits; no liability for loss of revenue; no liability for loss of use; no liability for loss of opportunities; no liability for loss of data; no liability for consequential loss; per event liability cap upon services contract; aggregate liability cap upon services contract.
Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
- Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
- Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
- Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
- Notices: methods and deemed receipt of contractual notices; contact details for contractual notices; substitute contact details for notices.
- Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
- Assignment: assignment by first party; assignment by second party.
- No waivers: no unwritten waivers of breach; no continuing waiver.
- Severability: severability of whole; severability of parts.
- Third party rights: third party rights: benefit; third party rights: exercise of rights.
- Variation: variation in writing and signed.
- Entire agreement: entire agreement: documents; no mispresentation; section subject to caveats to limits of liablity.
- Law and jurisdiction: governing law; jurisdiction.
- Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.
SCHEDULE 1 (SOFTWARE DEVELOPMENT PARTICULARS)
- Specification of
Software: specification of software prompt. Third Party Materials: prompt for identification of third party materials. Set Up Services: specification of software set up services prompt.
- Timetable: timetable prompt.
- Financial provisions: financial provisions prompt.
SCHEDULE 2 (MAINTENANCE SLA)
- Introduction: introduction to maintenance SLA.
Updates: obligation to create software updates; notice of software updates; provision of software updates; application of software updates; provision and application of software updates; consequences of not applying software update.