Business ELA Agreement

Business ELA Agreement

This Business ELA Agreement (the Agreement) is made effective as of by and between (Provider) and (Client).

Recitals

WHEREAS, Provider develops, licenses and supports business software, services and related deliverables described herein; and

WHEREAS, Client desires to obtain a limited enterprise license and related services from Provider, and Provider is willing to grant such license and provide services on the terms set forth in this Agreement; and

WHEREAS, the parties wish to set forth the scope, payment, confidentiality and other material terms governing the parties' relationship.

1. Scope of Work

Provider will perform the services and deliver the deliverables set forth in the Scope of Work in a professional and workmanlike manner consistent with industry standards. Any change in scope that would increase charges or extend delivery schedules must be documented in a written change order signed by both parties.

2. Payment Terms

Unless otherwise agreed in writing, Client shall pay Provider in accordance with the Payment Schedule. Amounts not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law and Client shall reimburse Provider for reasonable collection costs and attorneys' fees incurred to collect overdue amounts.

3. Term and Termination

The term of this Agreement shall commence on and shall continue until unless earlier terminated in accordance with this Section.

Either party may terminate this Agreement for material breach if the breaching party fails to cure such breach within thirty (30) days after receiving written notice specifying the breach. Either party may also terminate for insolvency, assignment for benefit of creditors, or appointment of a receiver for the other party.

4. Confidentiality

"Confidential Information" means non-public information disclosed by one party (Disclosing Party) to the other (Receiving Party) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, software, source code, technical data, pricing and customer lists.

The Receiving Party will (a) hold Confidential Information in strict confidence, (b) not disclose it to any third party except as permitted by this Agreement, and (c) use Confidential Information solely to fulfill its obligations under this Agreement. The Receiving Party may disclose Confidential Information to employees and contractors on a need-to-know basis provided they are bound by confidentiality obligations at least as protective as those in this Agreement. Confidentiality obligations do not apply to information that is or becomes publicly known other than by breach of this Agreement, was already known by the Receiving Party without restriction, or is rightfully obtained from a third party without restriction.

5. Intellectual Property and License

Provider retains all right, title and interest in and to Provider's pre-existing intellectual property and any improvements or derivative works thereof. Subject to Client's payment of all amounts due and compliance with this Agreement, Provider grants Client a non-exclusive, non-transferable enterprise license to use the licensed software and deliverables solely for Client's internal business operations during the Term. Any third-party components embedded in deliverables are subject to their respective license terms.

6. Warranties; Limitation of Liability

Provider warrants that it will perform services in a professional manner. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY, EACH PARTY'S AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

7. Notices

All notices under this Agreement must be in writing and will be deemed given when delivered personally, sent by certified mail (return receipt requested), or by a nationally recognized overnight courier to the addresses set forth above or such other address as a party designates by notice.

8. Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of , without regard to its conflicts of law rules. The parties agree to seek resolution of disputes through good faith negotiation and, if unsuccessful, through binding arbitration conducted in the governing jurisdiction under commercial arbitration rules selected by the parties.

9. Assignment

Neither party may assign this Agreement without the prior written consent of the other party, except that Provider may assign to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets provided that the assignee assumes Provider's obligations under this Agreement.

10. Entire Agreement

This Agreement, together with any exhibits and change orders executed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written. No amendment of this Agreement will be effective unless in writing and signed by both parties.

11. Miscellaneous

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. The headings in this Agreement are for convenience only and will not affect interpretation.

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