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Software licence and maintenance agreement (premium)

This is a detailed agreement designed to govern the licensing of software and the provision of maintenance services in relation to the licensed software.

In addition to the provision in the standard software licence and support agreement we publish, this document includes the following optional clauses: (i) a source code licence; (ii) an escrow clause; (iii) a licensee systems requirements clause; (iv) contract management clauses covering representatives, meetings and change control; (v) controls relating to expenses and timesheets; (vi) publicity restrictions; (vii) a data processor clause; and (viii) a clause prohibiting the poaching of personnel.

It is largely identical to our premium software licence, maintenance and support agreement, lacking only the support clause and associated SLA.

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Software licence and maintenance agreement (premium) contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term.
  3. Supply of Software: making software available for download; delivery of software; acknowledgement of supply of software.
  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. Licence: grant of licence to use software; software licence purpose; no sub-licensing of software; right to sub-license software; software licence limitations; use of software limited to specified persons; compliance with EULA; software licence prohibitions; security of licensed software; prerequisite software.
  7. Source Code: no licence of source code (excluding escrow).
  8. Licence audit: right to audit licences; notice of audit; cooperation in relation to audit; costs of licence audit; limits on audit right.
  9. Escrow: parties to enter into escrow agreement; all reasonable endeavours in relation to escrow agreement; form of escrow agreement.
  10. Maintenance Services: maintenance services provision; standard of maintenance services; maintenance services in accordance with SLA; software updates and upgrades warranty (first party application); software updates and upgrades warranty (second party application); suspension of maintenance services; termination of maintenance services for convenience; discontinuing software maintenance services; consequences of termination of maintenance services.
  11. Licensee
    obligations:
    general second party obligations; access to computer systems.
  12. Licensee
    Systems
    :
    compliance of second party computer systems.
  13. Licensee
    Materials:
    supply of second party materials; licence of second party materials; warranties relating to second party materials.
  14. No assignment of Intellectual Property Rights: no assignments of intellectual property rights.
  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
    Licensee
    's right to disclose personal data (GDPR); details of personal data and purposes of processing by 
    the Licensor
     (GDPR); duration of personal data processing by
    Licensor
    (GDPR); personal data processed by
    Licensor
    on instructions (GDPR); personal data processed by
    Licensor
    as required by law (GDPR); confidentiality obligations on
    Licensor
     persons processing personal data (GDPR); security of personal data processed by 
    Licensor
     (GDPR); appointment of sub-processor by
    Licensor
    (GDPR); authorisation for
    Licensor
    to appoint sub-processors (GDPR);
    Licensor
     to assist with exercise of data subject rights (GDPR);
    Licensor
     to assist with compliance (GDPR);
    Licensor
     to provide information (GDPR); deletion of personal data by 
    Licensor
     (GDPR);
    Licensor
     to allow audit (GDPR); changes to data protection law.
  25. Warranties: first party general warranties; software licence warranties; warranty of legality of software; software intellectual property 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 or software; 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 (services and licences); software licences on contract termination; software copies on contract termination.
  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. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
  35. Assignment: assignment by first party; assignment by second party.
  36. No waivers: no unwritten waivers of breach; no continuing waiver.
  37. Severability: severability of whole; severability of parts.
  38. Third party rights: third party rights: benefit; third party rights: exercise of rights.
  39. Variation: variation in writing and signed, subject to change control.
  40. Entire agreement: entire agreement: documents; no mispresentation; section subject to caveats to limits of liablity.
  41. Export control: application of export laws; compliance with export laws; specific export control compliance obligations.
  42. Law and jurisdiction: governing law; jurisdiction.
  43. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.

SCHEDULE 1 (SOFTWARE LICENCE PARTICULARS)

  1. Specification of Software: specification of software prompt.
  2. Set Up Services: specification of software set up services prompt.
  3. Timetable: timetable prompt.
  4. Software licence: specification of software licence prompt.
  5. Licensee
    Systems
    :
    prompt for indentification of customer system requirements.
  6. Licensee
    Materials
    :
    second party materials prompt.
  7. Financial provisions: financial provisions prompt.
  8. Representatives: first party representatives; second party representatives.

SCHEDULE 2 (MAINTENANCE SLA)

  1. Introduction: introduction to maintenance SLA.
  2. 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.
  3. Upgrades: upgrade release roadmap; obligation to release upgrades; notice of software upgrades; provision of software upgrades; application of software upgrades; provision and application of software upgrades; consequences of not applying software upgrade.

SCHEDULE 3 (EULA)

    EULA add prompt.

SCHEDULE 4 (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 5 (FORM OF ESCROW AGREEMENT)

    Add escrow agreement prompt.
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