Legal SDA Agreement

Legal SDA Agreement

This Software Development Agreement (the "Agreement") is entered into as of by and between Client Name: , an entity organized under the laws of , with principal place of business at ("Client"), and Service Provider: , an entity organized under the laws of , with principal place of business at ("Provider").

RECITALS

WHEREAS, Client desires to procure certain software development, customization and integration services described in the Scope of Work attached hereto; and

WHEREAS, Provider represents that it has the technical skill, personnel and resources necessary to perform such services and to deliver the Deliverables described herein; and

WHEREAS, the parties wish to set forth the terms and conditions that will govern Provider’s performance of the services and the parties’ respective rights and obligations.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "Acceptance Criteria" means the objective tests and procedures set forth in the applicable Statement of Work by which Client will determine whether a Deliverable conforms to the requirements specified therein.

1.2 "Deliverables" means all software, code, documentation, reports and other materials to be delivered by Provider pursuant to a Statement of Work.

1.3 "Statement of Work" or "SOW" means the document(s) describing the scope, schedule, milestones, Acceptance Criteria and pricing for Services, as agreed and executed by the parties.

2. SERVICES AND DELIVERABLES

2.1 Provider shall perform the services and deliver the Deliverables described in each SOW in a timely, professional manner in accordance with industry standards and the Acceptance Criteria stated in the applicable SOW.

3. CHANGES AND CHANGE ORDERS

3.1 Any change to the scope, schedule, price or Acceptance Criteria shall be documented in a written Change Order signed by authorized representatives of both parties. Provider will provide a written estimate of any cost and schedule impact prior to commencement of any change work.

4. ACCEPTANCE TESTING

4.1 Upon delivery of a Deliverable, Client shall have a period of days to perform Acceptance Testing in accordance with the Acceptance Criteria. If Client does not provide written notice of rejection within the Acceptance Testing period, the Deliverable shall be deemed accepted.

5. FEES AND PAYMENT

5.1 Client shall pay Provider the fees set forth in each SOW. Unless otherwise stated, fees are due within days of invoice.

6. INTELLECTUAL PROPERTY; LICENSES

6.1 Subject to Client’s payment of fees, Provider hereby assigns to Client all right, title and interest in and to the Deliverables created specifically for Client under this Agreement, including copyrights, subject to third-party components and pre-existing Provider Materials identified in an SOW.

6.2 Provider retains ownership of Provider Materials. Provider grants Client a perpetual, non-exclusive, worldwide, royalty-free license to use Provider Materials solely as incorporated in the Deliverables for Client’s internal business purposes.

7. CONFIDENTIALITY

7.1 Each party shall keep confidential all Confidential Information disclosed by the other party and shall not disclose such information to any third party except as reasonably necessary to perform this Agreement. "Confidential Information" includes non-public business information, technical data, trade secrets and the terms of this Agreement.

7.2 Confidentiality obligations shall not apply to information that is (a) publicly available through no breach of this Agreement; (b) lawfully received from a third party without restriction; or (c) independently developed without use of the other party's Confidential Information.

8. WARRANTIES

8.1 Provider represents and warrants that (a) it will perform the Services in a professional and workmanlike manner in accordance with industry standards, and (b) the Deliverables, as delivered, will conform materially to the applicable Specifications for a period of 90 days following acceptance. Provider's sole obligation for breach of this warranty shall be, at Provider's option, to repair or replace the nonconforming Deliverable.

9. INDEMNIFICATION

9.1 Provider shall indemnify, defend and hold harmless Client from and against any third-party claims alleging that the Deliverables infringe a third party's registered intellectual property rights, provided that Client gives Provider prompt written notice of the claim, reasonable cooperation, and sole control of defense and settlement.

10. LIMITATION OF LIABILITY

10.1 EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR A BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF EITHER PARTY FOR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO PROVIDER UNDER THE APPLICABLE SOW IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

11. TERM AND TERMINATION

11.1 This Agreement shall commence on the Effective Date and continue until all SOWs are completed or until earlier terminated as provided herein.

11.2 Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure the breach within thirty (30) days after receipt of written notice specifying the breach.

11.3 Upon termination for any reason, Client shall pay Provider for Services performed and Deliverables accepted through the effective date of termination and for any non-cancellable obligations incurred by Provider with respect to the SOW.

12. TRANSITION ASSISTANCE

12.1 Upon expiration or termination, Provider shall provide reasonable transition assistance at Client’s request for a mutually agreed upon fee to enable Client to migrate to an alternate provider. Provider will provide reasonable cooperation and deliver related materials necessary for transition.

13. NOTICES

All notices under this Agreement shall be in writing and delivered to the addresses set forth below by certified mail, nationally recognized courier, or personal delivery and shall be deemed given upon receipt.

14. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of , without regard to its choice of law principles.

15. ENTIRE AGREEMENT

This Agreement, together with all executed SOWs and Change Orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.

16. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it valid and enforceable.

17. AMENDMENTS; WAIVER; ASSIGNMENT

17.1 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. Failure or delay by either party to enforce any right shall not constitute a waiver of that right.

17.2 Neither party may assign this Agreement without the prior written consent of the other, except to a successor in interest by merger or sale of substantially all assets, provided that the assigning party remains liable for its obligations hereunder.

18. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures transmitted by electronic means shall be deemed binding.

19. MISCELLANEOUS

The parties acknowledge that the remedies provided in this Agreement are cumulative and not exclusive. Each party acknowledges that it has had the opportunity to consult with counsel of its choice.

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