Legal SSPA Document

SERVICE AND SOFTWARE PURCHASE AGREEMENT (SSPA)

This Service and Software Purchase Agreement (the "Agreement") is entered into as of by and between Client Name: , a , with its principal place of business at ; and Provider Name: , a , with its principal place of business at .

RECITALS

WHEREAS, Provider develops, licenses and delivers software and related professional services, and Client desires to purchase certain software, services and deliverables as set forth in this Agreement;

WHEREAS, Provider has represented that it possesses the expertise and resources to perform the services and provide the software described herein, and Client desires Provider to perform such services and supply the software under the terms and conditions of this Agreement;

WHEREAS, the parties wish to set forth their respective rights and obligations with respect to the provision of services, delivery of software and acceptance of deliverables.

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

1. DEFINITIONS

1.1 "Software" means the object code of the software products described in Exhibit A and any updates, enhancements or modifications supplied by Provider. "Services" means the professional services and implementation work described in the Scope of Work. "Deliverables" means tangible or electronic items to be delivered to Client under this Agreement.

2. SCOPE OF SERVICES AND PRODUCTS

2.1 Provider shall perform the Services and supply the Software and related Deliverables in accordance with the scope described below and in any attached Statement of Work executed by the parties.

3. DELIVERABLES; ACCEPTANCE

3.1 Provider shall deliver Deliverables in accordance with the delivery schedule. Client shall have a period of days following delivery to inspect and test the Deliverables. Failure to provide written rejection specifying nonconformities within such period shall constitute acceptance.

4. LICENSE AND OWNERSHIP

4.1 Provider grants to Client a non-exclusive, non-transferable license to use the Software solely for Client's internal business purposes, subject to payment of fees and compliance with this Agreement.

4.2 Provider retains all right, title and interest in pre-existing software, tools and know-how. Unless otherwise expressly assigned in writing, Provider shall retain ownership of all intellectual property embodied in general purpose software and tools used to develop Deliverables.

5. FEES, PAYMENT AND INVOICING

5.1 Client shall pay Provider the fees set forth below and in any Statement of Work. All fees are due in accordance with agreed payment milestones and invoices will be due within thirty (30) days of invoice date unless otherwise stated.

6. TAXES

6.1 All fees are exclusive of taxes. Client shall be responsible for sales, use, value-added, withholding and other taxes arising from the transactions under this Agreement, except taxes based on Provider's net income.

7. TERM; TERMINATION

7.1 The term of this Agreement shall commence on and continue until unless earlier terminated as provided herein.

7.2 Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure within days after written notice.

8. CONFIDENTIALITY

8.1 Each party shall maintain in confidence all Confidential Information disclosed by the other party and shall not use or disclose such information except as necessary to perform under this Agreement. Confidential Information excludes information that is publicly known or rightfully received from a third party.

8.2 The obligations of confidentiality shall survive termination for a period of five (5) years, or as otherwise required by applicable law with respect to trade secrets.

9. WARRANTIES; DISCLAIMER

9.1 Provider warrants that it will perform Services in a professional and workmanlike manner and that, at time of delivery, the Software will materially conform to the written specifications for a period of ninety (90) days. Client's sole remedy for breach of this warranty shall be re-performance or repair of nonconforming Services or Software.

9.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10. INDEMNIFICATION

10.1 Provider shall defend, indemnify and hold Client harmless from third party claims alleging that the Software, as delivered and used in accordance with this Agreement, infringes a valid patent, trademark or copyright. Provider's obligations are conditioned upon Client providing prompt written notice of any claim and reasonable cooperation in the defense. Provider shall have no obligation for claims arising from Client modifications, combination with third party products, or Client's negligence.

10.2 Client shall indemnify Provider from claims arising from Client's misuse of the Software or breach of its obligations under this Agreement.

11. LIMITATION OF LIABILITY

11.1 EXCEPT FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS. PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

12. INTELLECTUAL PROPERTY; ASSIGNMENT OF DELIVERABLES

12.1 Unless otherwise agreed in writing, Provider shall retain ownership of Provider's pre-existing materials. Upon full payment of fees due for custom Deliverables, Provider assigns to Client all proprietary rights, title and interest in and to such custom Deliverables to the extent assignable. Provider retains a non-exclusive, royalty-free license to use non-confidential general knowledge and routines for any purpose.

13. DATA PROTECTION AND SECURITY

13.1 Provider shall implement and maintain administrative, physical and technical safeguards reasonably designed to protect Client Data against unauthorized access, use or disclosure. Provider shall notify Client promptly upon becoming aware of any security breach affecting Client Data.

14. INSURANCE AND COMPLIANCE

14.1 Provider shall maintain commercial general liability and professional liability insurance with minimum limits of and shall provide certificates upon reasonable request.

15. NOTICES

15.1 All notices required under this Agreement shall be in writing and delivered to the addresses set forth below or such other address as a party designates by written notice.

16. AMENDMENT; WAIVER

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

17. GOVERNING LAW

17.1 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.

18. ENTIRE AGREEMENT

18.1 This Agreement, together with any exhibits and Statements of Work executed by the parties, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, whether written or oral, relating to the subject matter hereof.

19. SEVERABILITY

19.1 If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect and the invalid provision shall be reformed only to the extent necessary to make it enforceable.

20. COUNTERPARTS; ELECTRONIC SIGNATURES

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

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