Business Software System Template

BUSINESS SOFTWARE SYSTEM AGREEMENT

RECITALS

WHEREAS, Provider: develops, licenses and supports business software systems and related services; and

WHEREAS, Client: desires to engage Provider to design, implement and maintain a business software system in accordance with the terms of this Agreement; and

WHEREAS, the parties intend that this Agreement set forth the rights and obligations of each party in respect of development, delivery, licensing and support of the Software System.

SCOPE OF WORK

Provider shall perform the services and deliver the deliverables described below. Provider will use commercially reasonable efforts to perform the work in accordance with the schedule agreed by the parties and in compliance with applicable law.

PAYMENT TERMS

Client shall pay Provider as follows. Unless otherwise stated in an accepted statement of work, all amounts are stated in U.S. Dollars.

TERM AND TERMINATION

This Agreement commences on the Start Date and continues until the End Date, unless earlier terminated in accordance with this Section.

Start Date:   End Date:

Either party may terminate this Agreement for material breach by the other party if such breach remains uncured for the notice period specified above following delivery of written notice specifying the breach. Provider may suspend performance for non-payment and exercise other remedies permitted by law.

CONFIDENTIALITY

Each party shall hold in strict confidence all Confidential Information disclosed by the other party and shall not disclose such information except to its employees, agents or subcontractors on a need-to-know basis, and then only under obligations of confidentiality at least as protective as those contained in this Agreement. "Confidential Information" includes non-public business information, trade secrets, technical data, software, specifications and pricing, and other information designated as confidential or which a reasonable person would understand to be confidential.

Confidentiality obligations shall not apply to information that: (a) was already known to the receiving party without obligation of confidentiality; (b) becomes publicly available other than by breach of this Agreement; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of the disclosing party's Confidential Information. Confidentiality obligations survive for three (3) years after termination except for trade secrets, which shall remain protected for so long as they qualify as trade secrets.

INTELLECTUAL PROPERTY

Except as expressly set forth herein, Provider retains all right, title and interest in and to Provider's pre-existing intellectual property, tools, libraries and methodologies ("Provider IP"). Client shall own the intellectual property rights in the delivered customizations and deliverables specifically developed for Client under this Agreement, subject to Provider's ownership of Provider IP and subject to the license granted below.

Provider grants to Client a non-exclusive, non-transferable, worldwide license to use the deliverables for its internal business purposes, subject to payment in full and compliance with this Agreement. Provider may use general ideas, know-how and techniques arising from performance of the work for other clients so long as Client Confidential Information is not disclosed.

WARRANTIES; DISCLAIMER

Provider warrants that the services will be performed in a professional and workmanlike manner and that for a period of ninety (90) days following acceptance, material defects reported to Provider will be corrected at no additional charge. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY; INDEMNIFICATION

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. PROVIDER'S AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

Client shall indemnify and hold Provider harmless from and against all third-party claims arising from Client's misuse of the deliverables, Client data or Client's breach of this Agreement. Provider shall indemnify Client for third-party claims alleging that the deliverables infringe a third party's issued patent or copyright, subject to Provider's control of the defense and to Client providing prompt notice and reasonable cooperation.

DATA SECURITY AND PRIVACY

Provider will implement and maintain commercially reasonable administrative, physical and technical safeguards to protect Client Data from unauthorized access, disclosure, alteration and destruction. Provider will notify Client without undue delay upon becoming aware of any security breach affecting Client Data and will take commercially reasonable measures to remediate the breach.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that State for resolution of disputes.

ENTIRE AGREEMENT

This Agreement, together with any statements of work and appendices expressly incorporated herein, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. Any amendment or modification must be in writing and signed by authorized representatives of both parties.

NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth above or to such other address as a party may specify in writing. Notices shall be effective upon receipt.

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