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Software development and maintenance agreement (premium)

This is the most sophisticated version of our software development and maintenance agreement. It incorporates an assignment or transfer or intellectual property rights in the software to the customer. In addition, this version includes a separate licensing clause for framework software - that is, software owned by the developer that will not be assigned to the customer. In addition to the additional clauses relating to intellectual property, this document includes a wide range of optional provisions, and is highly flexible.

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Software development and maintenance agreement (premium) contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. Framework Software: grant of licence to use framework software; no sub-licensing of framework software; right to sub-license framework software; use of framework software limited to specified persons; framework software licence prohibitions; security of licensed framework software.
  8. Source Code of Framework Software: no licence of source code of framework software (excluding escrow).
  9. Escrow of Source Code of Framework Software: parties to enter into escrow agreement (framework software); all reasonable endeavours in relation to escrow agreement; form of escrow agreement.
  10. Third Party Materials: licensing of third party materials (software).
  11. 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.
  12. Additional Development Services: parties may agree additional development services; matters to be agreed relating to additional development services; standard of additional development services.
  13. Customer
    obligations:
    general second party obligations; access to computer systems.
  14. Customer
    Materials:
    supply of second party materials; licence of second party materials; warranties relating to second party materials.
  15. Representatives: instructions given by first party representatives; instructions given by second party representatives.
  16. Management: management meetings; notice to be given when requesting management meeting; attendance of representatives at management meetings.
  17. Change control: application of section to change requests; request changes at any time; change control notice to be in designated form; actions upon receipt of a change control notice; changes only take effect upon agreement of CCN.
  18. Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
  19. Expenses: obligation to reimburse expenses; collection of evidence of expenses; supply of evidence of expenses.
  20. Timesheets: obligation to keep timesheets; obligation to supply timesheets.
  21. Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
  22. 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.
  23. Publicity: limited public disclosures; limited public disclosures by first party; limited public disclosures by second party; confidentiality obligations overriding.
  24. Data protection: compliance with data protection laws; warranty of
    Customer
    's right to disclose personal data (GDPR); details of personal data and purposes of processing by 
    the Developer
     (GDPR); duration of personal data processing by
    Developer
    (GDPR); personal data processed by
    Developer
    on instructions (GDPR); personal data processed by
    Developer
    as required by law (GDPR); confidentiality obligations on
    Developer
     persons processing personal data (GDPR); security of personal data processed by 
    Developer
     (GDPR); appointment of sub-processor by
    Developer
    (GDPR);
    Developer
     to assist with exercise of data subject rights (GDPR);
    Developer
     to assist with compliance (GDPR);
    Developer
     to provide information (GDPR); deletion of personal data by 
    Developer
     (GDPR);
    Developer
     to allow audit (GDPR); changes to data protection law.
  25. 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.
  26. Acknowledgements and warranty limitations: software not error free; software not entirely secure; software compatibility is limited; no legal etc advice with software.
  27. 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.
  28. 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.
  29. Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
  30. Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
  31. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
  32. Non-solicitation of personnel: non-solicitation of employees by second party; non-solicitation of employees by first party.
  33. Notices: contractual notices must be in writing; methods of sending contractual notices to first party; methods of sending contractual notices to second party; contact details for contractual notices; substitute contact details for notices; acknowledgement of notice by email; deemed receipt of contractual notices.
  34. Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
  35. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
  36. Assignment: assignment by first party; assignment by second party.
  37. No waivers: no unwritten waivers of breach; no continuing waiver.
  38. Severability: severability of whole; severability of parts.
  39. Third party rights: third party rights: benefit; third party rights: exercise of rights.
  40. Variation: variation in writing and signed, subject to change control.
  41. Entire agreement: entire agreement: documents; no mispresentation; section subject to caveats to limits of liablity.
  42. Export control: application of export laws; compliance with export laws; specific export control compliance obligations.
  43. Law and jurisdiction: governing law; jurisdiction.
  44. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.

SCHEDULE 1 (SOFTWARE DEVELOPMENT PARTICULARS)

  1. Specification of Software: specification of software prompt.
  2. Third Party Materials: prompt for identification of third party materials.
  3. Set Up Services: specification of software set up services prompt.
  4. Timetable: timetable prompt.
  5. Customer
    Materials
    :
    second party materials prompt.
  6. Financial provisions: financial provisions prompt.
  7. Representatives: first party representatives; second party representatives.

SCHEDULE 2 (MAINTENANCE SLA)

  1. Introduction: introduction to maintenance SLA.
  2. 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.

SCHEDULE 3 (FORM OF CCN)

  1. Introduction: title of change; change control notice number; change proposor; date of change control notice; summary of proposed change.
  2. Change details: insert details of change.
  3. Impact of Change: impact upon resources; impact upon timetable; impact upon charges; other effects of proposed change.
  4. Agreement to Change: acceptance of change by signature; form of signature block for first party; form of signature block for second party.

SCHEDULE 4 (FORM OF ESCROW AGREEMENT)

    Add escrow agreement prompt.

SCHEDULE 5 (DATA PROCESSING INFORMATION)

  1. Categories of data subject: prompt for categories of data subject.
  2. Types of Personal Data: prompt for types of personal data.
  3. Purposes of processing: prompt for personal data processing purposes.
  4. Security measures for Personal Data: prompt for security measures for personal data.
  5. Sub-processors of Personal Data: prompt for identifying sub-processors of personal data.
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