Here is the whole thing for anybody who needs one. It is kinda long
Hope this helps
Doug
Software Agreement
Dated October 22, 2000
AGREEMENT made this 22nd day of October 2000
BETWEEN (called "the Purchaser")
AND (called "the Supplier").
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Preamble
a.. The Purchaser has called for proposals in the RFP to develop a suite
of computer programs that will perform in accordance with the Requirements
specified in the schedules attached to this Agreement.
b.. The Supplier is skilled in the development of computer programs of the
type required by the Purchaser, and is willing to develop the Software for
the Purchaser and has responded with an offer to develop these programs.
c.. The Purchaser has evaluated all proposals received and selected an
offer from the Supplier on the basis that it is represented to satisfy the
Requirements.
d.. The parties agree to the supply of the Products and Services on the
following terms and conditions:
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1. Definitions and Interpretations
1.1 In this Agreement, unless the context otherwise requires:
"Acceptance" means the date on which the Purchaser certifies satisfactory
completion of Acceptance Testing as provided in clause 5.3. "Accepted" has a
corresponding meaning.
"Acceptance Testing" means the tests, including the performance standards,
procedures, time periods and test specifications.
"Agreement" means this Agreement and includes all Schedules and Appendices
attached to it or incorporated in it by reference.
"Contractual Correspondence" means any correspondence between the parties
relating to this agreement.
"Documentation" means user manuals (including those in electronic form on
any media), handbooks, maintenance libraries, education materials and other
publications containing specifications to be supplied in order to assist the
use, operation or support of the Software.
"Effective Date" means the date this Agreement comes into force being the
date on which both parties sign it.
"Equipment" means computer hardware, telecommunications hardware,
accessories, attachments, alterations of and spare parts for that Equipment.
"Installation Date" means the date by which installation of the Products
must be completed.
"Installation Site" means the location at which the Products will be
installed.
"Payment Schedule" means the period, percentage and conditions of payment
for Equipment, Software and Services.
"Products" means any of the Software and Documentation supplied pursuant to
this Agreement.
"Requirements" means the statement of the Purchaser's business requirements
for the Software.
"Services," means any service or task to be performed by the Supplier under
this Agreement including, without limitation, the performance of the
responsibilities referred to in clause 2
"Software" means the source code and executable object code for all computer
programs, subroutines, diagnostic routines, control software or special
software to be delivered by the Supplier under this Agreement, excluding the
Licensed Software.
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1.2 For the purposes of interpretation and construction of this Agreement:
1.2.1 Words importing one gender include the others.
1.2.2 Words importing the singular or plural number include the plural and
singular number respectively.
1.2.3 References to Sections, Clauses, and Schedules are references to
sections, clauses and schedules in this Agreement.
1.2.4 Any Schedules, and the provisions and conditions contained in such
Schedules, will have the same effect as if set out in the body of the
Agreement. In the event of any conflict between the Schedules and the body
of this Agreement, the provisions and conditions of the body of this
Agreement will prevail.
1.2.5 Headings and marginal notes are inserted for the sake of convenience
of reference only and do not affect the interpretation of this Agreement.
1.2.6 If there is any conflict of meaning between information contained in
the documents referred to in this Agreement, the order of precedence will be
as follows:
� The body of this Agreement.
� The Schedules to this Agreement (other than the Contractual
Correspondence, the Proposal and the RFP).
� The Contractual Correspondence.
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2. Scope
2.1 The Supplier agrees to perform all Services necessary to develop the
Products for the Purchaser in two (2) phases.
2.1.1 Phase 1. The Purchaser will prepare Detailed Specifications for the
development of Software capable of satisfying the Requirements.
2.1.2 Phase 2. Upon completion of Phase 1, and the Suppliers acceptance of
the Detailed Specifications, the Supplier will code, test and debug the
Software. The Purchaser will perform Acceptance Testing in accordance with
clause 5.
2.3 Change Request Procedure
The Supplier shall develop the Software in Phase 2 pursuant to the Detailed
Specifications as provided by the supplier, which shall be deemed to be part
of this Agreement.
No changes in or deviations from the Detailed Specifications will be
permitted unless the following procedure is followed:
2.3.1 The Purchaser must submit a written request detailing the changes that
it desires.
2.3.2 Within ten (10) days of the receipt of the request, the Supplier will
inform the Purchaser, in writing, of any problems posed by the proposed
change, including any costs of carrying out analysis and specification of
the change if it is considered significant, and of any change in price or
schedule that will be caused by the proposed change in specifications.
2.3.3 Unless the parties agree the change in writing, the change will not be
made. If the change is accepted the written request for change and the
Supplier's response thereto, will be deemed to constitute an amendment to
this Agreement.
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3. Charges and Payments
3.1 Price
The amount payable for the supply of the Products and Services will be as
detailed in the Payments Schedules to this Agreement. Amounts will be
payable by the Purchaser, at the rate applicable at the time of invoice.
3.2 Total Charges
Subject to any agreed variations or change requests the Price specified in
this Agreement is the total charge to the Purchaser.
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4. Delivery and Installation
4.1 The Supplier will deliver the Products to the purchaser upon completion,
with freight and insurance to be paid by purchaser.
4.2 The Supplier will provide such instructions and environmental
specifications as requested by the Purchaser to enable the Purchaser to
prepare the Installation Site for installation.
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5. Acceptance
5.1 Acceptance Testing
Unless otherwise agreed in writing, acceptance of all Products shall be
conditional upon those Products having successfully completed all Acceptance
Tests by the agreed date for completion and the Supplier having performed
all actions required by this Agreement as of such date.
5.2 Acceptance - Phase 1
Upon delivery of the Detailed Specifications to be developed in Phase 1 of
this Agreement, the Purchaser shall have ten (l0) business days to examine
the same in order to determine whether or not they conform to the
Requirements. If the Detailed Specifications satisfy such Requirements and
the estimated cost is acceptable to the Purchaser, the Purchaser shall
notify the Supplier in writing of its acceptance and the Supplier will
promptly begin work on Phase 2 on a date agreed in writing between the
parties. If the Products delivered under Phase l fail to satisfy the
Requirements, the Purchaser shall notify the Supplier, specifying the
desired changes, and the Supplier shall correct, modify, or improve the
Products to meet all of the Requirements.
5.3 Acceptance - Phase 2
Following delivery of the Products to the Purchaser, the Purchaser shall
operate the Software on its system for a period not to exceed ten (10)
business days to determine whether:
5.3.1 The Software conforms to the Detailed Specifications
5.3.2 The Software is capable of processing on a repetitive basis a variety
of the Purchaser's actual data, without failure.
5.4 Successful Completion
If the Products successfully meet the Acceptance Tests, based upon
reasonable judgment of pass or fail, the Products shall be deemed to be
accepted. In such case, the Acceptance Date shall be the date that the
Products satisfactorily complete all of the Acceptance Tests specified
above.
5.5 Unsuccessful Completion
If the Products fail to meet the Acceptance Tests, the Purchaser shall
notify the Supplier of such failure in writing and the Supplier shall have
20 business days after receipt of and notice to correct, modify, or improve
the Products so that they conform to the Detailed Specifications.
Thereafter, the Purchaser shall have 10 business days in which to re-conduct
the Acceptance Tests specified above. This process shall be repeated as may
be necessary until the Products are deemed to be accepted hereunder;
provided, however, that if the Products are not accepted by the agreed date
for completion (after due allowance for any delay on the part of the
Purchaser) then the Purchaser may take the actions specified in clause 5.8.
5.6 Constructive Acceptance
The Products will be deemed Accepted in the event that the Purchaser:
5.6.1 Unreasonably delays commencing Acceptance Testing. A delay of seven
(7) business days or greater from the date at which the Supplier advises the
Purchaser that the Products are ready to commence Acceptance Testing;
5.6.2 Uses the Software which is subject to Acceptance Testing for
productive purposes prior to Acceptance, provided such use is not part of
the Acceptance Testing; or
5.6.3 Fails to provide any materials or resources reasonably required for
Acceptance Testing.
5.7 Notice of Acceptance
If the Products satisfy the Acceptance Tests the Purchaser will promptly
confirm such satisfaction of the Acceptance Tests to the Supplier in writing
provided that if such notice is not given within three (3) business days of
completion of the Acceptance Tests the Tests will be deemed passed and the
Products accepted.
5.8 Acceptance Testing Failure
If the Products fail to satisfy the Acceptance Tests within the period
specified, then in addition to any other remedy, the Purchaser may elect to:
5.8.1 Agree to an extension of time for the completion of the Acceptance
Tests.
5.8.2 Accept the Products upon terms acceptable to the Purchaser.
5.8.3 Terminate this Agreement in accordance with clause 15.3.
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6. Confidentiality
Both parties agree that, unless they have the prior written consent of the
other, they will not use or disclose to any third party (other than for the
purpose of performing this Agreement) the terms and conditions of this
Agreement or any information which is confidential to the other party. The
obligations of clause 6 shall survive termination or cancellation of this
Agreement.
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7. Publicity
Neither party will advertise or publicly announce any matter relating to the
existence of this Agreement, without the other's prior written consent,
which will not be unreasonably withheld.
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8. Documentation
The Supplier will provide the Purchaser with Documentation as needed
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9. Access Security
If requested by the Purchaser, the Supplier will comply with the Purchaser's
security procedures for access to the Installation Site and the Equipment
but shall not be responsible for any delays resulting from delays in
obtaining access.
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10. Training
The Supplier will not be obligated in anyway to provide training of said
software.
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11. Warranties
The Supplier warrants that:
11.1 The Supplier represents and warrants that it is highly skilled and
experienced in programming for the operating system in the programming
language, and that it also possesses the additional expertise needed to
develop and provide the particular Products required by this Agreement. The
Supplier acknowledges that the Purchaser is relying upon the skill and
expertise of the Supplier for the performance of this Agreement.
11.2 The Supplier represents and warrants that the Products produced and
provided hereunder will be of original development by the Supplier and will
not infringe upon or violate any patent, copyright, trade secret or other
property right of any third party, and the Supplier will indemnify and hold
the Purchaser harmless from and against any loss, cost, liability or expense
(including reasonable legal fees) arising out of any breach or claimed
breach of this warranty.
11.3 The Supplier represents and warrants that the Software and
Documentation delivered hereunder will conform to the Detailed
Specifications. The Supplier will, without additional charge to the
Purchaser, use its best efforts to make such additions, modifications, or
adjustments to the Software as may be necessary to correct any problems or
defects discovered in the Software or Documentation and reported to the
Supplier by the Purchaser within a period of 90 days after the Acceptance
Date, excluding defects or problems arising from misuse by the Purchaser.
11.4 This warranty shall be null and void in the event that the Purchaser
without the approval of the Supplier modifies all or any part of the
Software.
11.5 The foregoing warranty is in lieu of, and the Supplier disclaims, all
other warranties express or implied, including, but not limited to, the
implied warranties of merchantability and fitness for a particular purpose.
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12. Ownership
12.1 All intellectual property rights, which may subsist in the Software and
associated documentation, shall immediately vest in the Purchaser as such
rights are created. Without prejudice to the generality of the preceding
sentence, the Supplier shall retain no rights of confidential information or
copyright in the Software or associated Documentation. Ownership of Licensed
Software shall remain with the proprietor of such software.
12.2 The parties shall execute all documents and do all acts and things
reasonably required for the purpose of giving effect to clause 12.1.
12.3 Any idea, concept, know-how or technique which is developed or provided
by either party or jointly by both parties in the development of the
Software may (subject to applicable patents and copyrights) be freely used
by either party in any way it deems appropriate.
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13. Intellectual Property Rights Indemnity
13.1 The Supplier will indemnify the Purchaser against and will at its cost
defend or settle any claim, suit, action or proceeding (collectively called
"Action") brought against the Purchaser to the extent that the Action is
based on a claim that the Purchaser's use of deliverables supplied by the
Supplier constitutes a breach of any patent, copyright, trade secret or
other proprietary right provided that:
13.1.1 the Purchaser fully co-operates with the Supplier in defending or
settling the Action and makes its employees available to give statements,
advice and evidence as the Supplier may reasonably request.
13.1.2 the Supplier is notified promptly in writing of any Action and is
given complete authority and information required for the conduct of the
defense or settlement of the Action.
13.1.3 the Supplier shall have the sole control of the conduct of any Action
and all negotiations for its settlement or compromise.
13.2 In order to fulfill its obligations under clause 13.1 the Supplier
shall forthwith at its own expense either:
13.2.1 obtain for the Purchaser the legal right to continue using the
Product(s) or part of the Product(s) which is the subject of the claim; or
13.2.2 modify the Product(s) to render it non-infringing; or
13.2.3 replace the Product(s) (or the infringing parts of the Product(s))
with a reasonably equivalent Product(s) or part thereof.
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14. Limitation of Liability
14.1 The warranties in clause 11 replace all other representations or
warranties (statutory, express or implied) and all such representations and
warranties (save any which may not lawfully be excluded) are expressly
excluded, including, without limitation, the implied warranties of
merchantability and fitness for any particular purpose. The foregoing
exclusions do not apply to rights granted to the Purchaser under the
Consumer Guarantees Act 1993 unless the Purchaser is acquiring the System
for the purposes of a business in which case the provisions of the Consumer
Guarantees Act 1993 shall not apply.
14.2 Neither party will under any circumstances be liable under the law of
tort, contract or otherwise for any loss of profits or savings or for any
indirect or consequential loss or damage, however caused, arising out of or
in connection with the performance or non-performance of this Agreement.
14.3 The Supplier's liability to the Purchaser arising out of any claim for
damages for any cause whatsoever will under no circumstances exceed in
aggregate the total amount of the sums actually paid by the Purchaser to the
Supplier for the goods or services which gave rise to the claim.
14.4 No action arising out of this Agreement, regardless of form, may be
brought by either party more than two years after the cause of action arose.
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15. Termination
15.1 Immediate Termination
Either party may terminate this Agreement forthwith if the other party:
15.1.1 if the other party assigns its rights or obligations under the
Agreement otherwise than in accordance with clause 20;
15.1.2 if the other party enters into a composition with its creditors, is
declared bankrupt, goes into liquidation, or a receiver, or a receiver and
manager, or statutory receiver is appointed in respect of it
15.1.2 parties fail to reach agreement on commencement of Phase 2 in
accordance with clause 5.2.
15.2 Termination by Either Party on Notice
If one party defaults in the performance of any of its obligations under
this Agreement and:
15.2.1 the default is capable of being remedied, and, within thirty (30)
days of notice by the non-defaulting party specifying the default, is not
remedied; or
15.2.2 the default is not capable of being remedied
The non-defaulting party may immediately terminate, or temporarily suspend
the operation of this Agreement until the default is remedied, at its sole
discretion.
15.3 Termination by Purchaser
In addition to any other remedy, the Purchaser may terminate this Agreement
immediately on giving notice:
15.3.1 pursuant to Clause 5.8 (Acceptance Testing Failure).
15.4 Partial Termination
Where the Purchaser has a right to terminate this Agreement under Clause
15.3, the Purchaser may at its discretion either terminate this Agreement,
or terminate this Agreement in respect of those parts of the Agreement which
can be severed from the remainder and which provide for the performance of
those obligations which the Supplier has not performed.
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16. Force Majeure
16.1 Neither party will be liable for any act, omission, or failure to
fulfill its obligations under this Agreement if such act, omission or
failure arises from any cause reasonably beyond its control including acts
of God, strikes, lockouts, riots, acts of war, epidemics, governmental
action after the date of this Agreement, fire, communication line failures,
power failures, earthquakes or other disasters (called "Force Majeure").
16.2 The party unable to fulfill its obligations due to Force Majeure will
immediately:
16.2.1 notify the other in writing of the reasons for its failure to fulfill
its obligations and the effect of such failure.
16.2.2 use all responsible endeavors to avoid or remove the cause and
perform its obligations.
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17. Waiver
No delay, neglect or forbearance by either party in enforcing against the
other any provision of this Agreement will be a waiver, or in any way
prejudice any right, of that party.
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18. Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, such provision will be severed and the remainder of the
Agreement will remain in full force and effect.
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19. Notices
Any notice given pursuant to this Agreement will be sufficiently given if it
is in writing and delivered, or sent by prepaid post or facsimile to the
other party at the address as shown below:
The Purchaser's address ...
the Supplier's address...
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20. Assignment
Neither party may assign or transfer its rights or obligations under this
Agreement without the prior written consent of the other party, which may
not be unreasonably withheld.
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21. Amendments
Any modification to or variation of this Agreement must be in writing and
signed by authorized representatives of the Supplier and the Purchaser.
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22. Survival
22.1The provisions of this Agreement, which are capable of having effect
after termination of this Agreement, shall remain in full force and effect
following the termination of the Agreement.
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23. Entire Agreement
The parties acknowledge that this Agreement contains the whole of the
contract and understanding between them. There are no conditions, warranties
or other understandings affecting the arrangements between the parties other
than those set out herein and this Agreement replaces all prior Agreements
and understandings (if any) with respect to the subject matter of this
Agreement.
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24. Disputes and Remedies
24.1 The parties agree to use their best efforts to resolve any dispute,
which may arise under the Agreement through good faith negotiations. No
party shall commence any arbitration or litigation in relation to this
Agreement unless it has first invited the chief executive of the other party
to meet with its own chief executive for the purpose of endeavoring to
resolve the dispute on mutually acceptable terms.
24.2 Any dispute arising under this Agreement which cannot be settled by
negotiation between the parties or their respective representatives shall be
submitted to arbitration in accordance with the Arbitration Act 1908. The
decision of the arbitrator shall be final.
24.3 In the absence of agreement concerning the appointment of an
arbitrator, either party may request the courts to appoint a suitably
qualified independent arbitrator to hear and determine the dispute.
24.4 The parties shall continue to perform their obligations under the
Agreement as far as possible as if no dispute had arisen pending the final
settlement of any matter referred to arbitration.
24.5 Nothing in this clause shall preclude either party from taking
immediate steps to seek urgent equitable relief before a United States
Court.
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25. Payment Schedule
25.1 The following modules will be made part of this agreement.
25.2 Completion of each module above will result in 2% of GMR (Gross Monthly
Revenue) from operations to be paid to the supplier for a term of 10 years
but not to exceed 10 years. 50% completion of total project is required for
payment schedule to come into affect.
25.3 Supplier shall deliver to the purchaser each module upon completion for
testing before acceptance. See clause 5
EXECUTED as an Agreement on the date first above written.
SIGNED on behalf of The Supplier
by a duly authorized officer in the presence of:
SIGNED on behalf of The Purchaser
by a duly authorized officer in the presence of:
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