Software development and maintenance agreements

Software development and maintenance agreement (basic) 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. Assignment: assignment of IPR on delivery with full title guarantee option; assignment of owned IPR in software on delivery; assignment for full term of rights; assignment includes right to claim for past infringements.
5. Third Party Materials: licensing of third party materials (software).
6. Maintenance Services: software maintenance services provision (from delivery); standard of maintenance services; 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.
7. Customer
   obligations: general second party obligations.
8. Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
9. Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
10. 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.
11. 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.
12. Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
13. Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
14. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
15. Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
16. Notices: methods and deemed receipt of contractual notices; contact details for contractual notices; substitute contact details for notices.
17. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
18. General: no waiver; severability; variation written and signed; no assignment without written consent; no third party rights; entire agreement; governing law; exclusive jurisdiction.
19. 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. Timetable: timetable prompt.
4. Financial provisions: financial provisions prompt.

Software development and maintenance agreement (standard) 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
   Customer
   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. Third Party Materials: licensing of third party materials (software).
8. 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.
9. Customer
   obligations: general second party obligations; access to computer systems.
10. Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
11. Expenses: obligation to reimburse expenses; collection of evidence of expenses; supply of evidence of expenses.
12. Timesheets: obligation to keep timesheets; obligation to supply timesheets.
13. Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
14. Confidentiality obligations:
    Developer
    confidentiality undertaking;
    Customer
    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 delete confidential information following termination; confidentiality obligations after termination.
15. 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.
16. Acknowledgements and warranty limitations: software not error free; software not entirely secure; software compatibility is limited; no legal etc advice with software.
17. Indemnities: indemnity (flexible, with definition); conditions upon first party indemnity; indemnity (flexible, with definition); conditions upon second party indemnity; limitations of liability vs indemnities.
18. 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.
19. Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
20. Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
21. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
22. Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
23. Notices: methods and deemed receipt of contractual notices; contact details for contractual notices; substitute contact details for notices.
24. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
25. Assignment: assignment by first party; assignment by second party.
26. No waivers: no unwritten waivers of breach; no continuing waiver.
27. Severability: severability of whole; severability of parts.
28. Third party rights: third party rights: benefit; third party rights: exercise of rights.
29. Variation: variation in writing and signed.
30. Entire agreement: entire agreement: documents; no misrepresentation; section subject to caveats to limits of liability.
31. Law and jurisdiction: governing law; jurisdiction.
32. 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. Financial provisions: financial provisions prompt.

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.