IT Software Agreement

IT SOFTWARE AGREEMENT

This IT Software Agreement ("Agreement") is entered into as of by and between Client Name: and Provider Name: .

RECITALS

WHEREAS, Client requires software development, customization, implementation, hosting and/or support services for the information technology systems described herein; and

WHEREAS, Provider represents that it has the technical expertise, personnel and resources to deliver software, associated documentation and services in accordance with the terms of this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the parties agree as follows.

1. SCOPE OF WORK

Provider shall perform services and deliverables as described below. Provider will exercise commercially reasonable efforts to perform in accordance with the schedule and milestones agreed by the parties.

2. LICENSE AND DELIVERABLES

Subject to timely payment and compliance with this Agreement, Provider grants Client a non-exclusive, non-transferable license to use the Deliverables solely for Client's internal business purposes. Provider retains all right, title and interest in pre-existing software, tools, libraries and methodologies ("Provider Background Technology"). Any custom code or deliverable specifically developed for Client under this Agreement will be considered "Client Deliverables" and ownership will be as set forth below.

3. PAYMENT TERMS

In consideration for the services and Deliverables, Client shall pay Provider the fees set forth below in accordance with the schedule. All fees are exclusive of applicable taxes unless otherwise required by law.

Late payments shall accrue interest at the lesser of (a) per month, or (b) the maximum rate permitted by applicable law. Client shall also be responsible for reasonable collection costs and expenses.

4. TERM AND TERMINATION

This Agreement shall commence on the Start Date and continue until the End Date, unless earlier terminated as provided herein.

Start Date:    End Date:

Either party may terminate this Agreement for material breach by the other party if such breach is not cured within days after written notice. Either party may terminate for convenience upon days' prior written notice. Termination does not relieve Client of its obligation to pay fees for Services performed and non-cancellable commitments made prior to termination.

Upon termination, each party shall return or destroy the other party's Confidential Information and Provider shall, at Client's option, deliver any completed Deliverables for which Client has paid.

5. CONFIDENTIALITY

"Confidential Information" means any non-public information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential. Each party shall: (a) use Confidential Information only to perform its obligations under this Agreement; (b) restrict disclosure to employees, contractors or agents who have a need to know and are bound by obligations of confidentiality no less protective than those herein; and (c) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information, but no less than a reasonable degree of care.

The confidentiality obligations shall survive termination for a period of years, except that trade secrets shall be protected for as long as they remain trade secrets under applicable law.

6. DATA SECURITY AND PRIVACY

Provider shall maintain commercially reasonable administrative, technical and physical safeguards to protect Client Data against unauthorized access, disclosure, alteration or destruction. Provider will promptly notify Client of any confirmed security breach affecting Client Data and will cooperate in breach response and remediation.

7. WARRANTIES; DISCLAIMER

Provider warrants that the services will be performed with reasonable skill and care and that, for a period of days following acceptance, materially defective Deliverables shall be corrected at no additional charge. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

8. INDEMNIFICATION

Provider shall defend and indemnify Client from and against third-party claims arising from Provider's breach of its representations or infringement of third-party intellectual property rights, provided Client (a) promptly notifies Provider of any claim, (b) grants control of the defense and settlement to Provider, and (c) cooperates reasonably. Client shall indemnify Provider against claims arising from Client's misuse of the Deliverables or Client Data.

9. LIMITATION OF LIABILITY

EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES.

10. MAINTENANCE AND SUPPORT

If applicable, Provider will provide maintenance and support services as described below at the rates and response times set forth. Support obligations shall be limited to the version of the software in production at the time of the service request, subject to any separate support schedule.

11. INTELLECTUAL PROPERTY

Except as expressly set forth, Provider retains all rights, title and interest in Provider Background Technology. Client owns custom Deliverables to the extent that Client has paid for such Deliverables in full, subject to Provider's ownership of Background Technology and any third-party components. Any third-party software included in Deliverables remains subject to the third-party license terms.

12. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction set below, without regard to its conflict of law principles.

13. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth above or such other address as a party may designate in writing. Notices shall be deemed given when received.

14. ENTIRE AGREEMENT

This Agreement, including all exhibits, schedules and statements of work expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals, negotiations and communications, whether written or oral. No amendment shall be effective unless in writing and signed by authorized representatives of both parties.

15. MISCELLANEOUS

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except to a successor in interest in connection with a merger or sale of substantially all assets.

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