Software Services Agreement[CD1] 
THIS AGREEMENT MADE
at..................... on this............... day of...................
20......
BETWEEN
............................Limited a company
registered under the Companies Act, 1956 and having its registered office
at.................................. (Hereinafter referred to as
"CLIENT") which expression shall unless it be repugnant to the
context or otherwise be deemed to include its successors and assignees.
AND
............................Limited a
company registered under the Companies Act, 1956 and having its registered
office at.................................. (Hereinafter referred to as
"SUPPLIER") which expression shall unless it be repugnant to the
context be deemed to include its successors and assignees.
WHEREAS the CLIENT has approached the
SUPPLIER for writing certain software programs as described in this agreement.
WHEREAS the SUPPLIER agrees to write
software programs for the client and to provide such other services described
in and upon the terms and conditions contained in this Agreement.
NOW THEREFORE, in consideration of the
mutual covenants and obligations between the parties it is agreed as follows:
I.
Definitions
In this Agreement, unless the context
otherwise requires, the following expression shall have the meaning hereinafter
assigned to them:
1.
Acceptance Date: means the date on which the
Programs are accepted [or deemed to be accepted] by the Client;
2.
Budget: means the budget giving all the
relevant details as to quality, quantity and projected cost etc., to be
prepared and agreed for each Budget Year;
3.
Budget Year: means each period of 12 months
or less in the event of a termination during the currency of the agreement;
4.
Completed Programs: means fully installed,
and tested and accepted programs;
5.
Equipment: means the Client's computer
hardware and associated peripherals equipment specified in Schedule or such
other equipment as may be agreed between the parties;
6.
Execution Plan: means the time Schedule for
the completion of the Phases of preparation and delivery of the Programs as
specified in Schedule...
7.
Finishing Date: means the date specified in
the Execution Plan by which the Supplier is to provide the Completed Programs,
or such extended date as may be set pursuant to any provision of this
Agreement;
8.
Guidance Plan: means the training provided by
the Supplier for the use of the Programs by the Client's staff the details of
which are set out in Schedule
9.
Maximum Cost: means the sum specified in
Schedule.
10. Operative
Specifications: means the specification in accordance with which the Programs
are to be written;
11. Operating
Manuals: means the operating manuals to be prepared by the Supplier;
12. Operation
Criteria: means the criteria which is intended that the Programs shall fulfill
as specified in the Operative Specifications subject to the tolerances,
limitations and exceptions stated in the Operative Specifications;
13. Phase:
means a Phase of the Execution Plan;
14. Price:
means the price to be paid by the Client for the Services as specified in
Schedule.
15. Programs:
means the applications/computer programs to be written by the Supplier;
16. Services:
means the services to be provided by the Supplied under this Agreement;
17. Testing
Date: means the date on which the Supplier attends the program [s] tests on the
Client's premises.
II.
Covenant Services to be provided
a. The Supplier, under the
terms and conditions of this Agreement, agrees to: i. Write the Program
[s];
ii. Successfully install
the Program [s] on the Equipment; iii. Provide the Completed
Program [s] by the Finishing Date; and iv. Provide Operating
Manuals and training;
Supplier's
Acceptance
a.
The Supplier accepts that the Programs are to
be used by the Client in conjunction with the Equipment and the client's
existing _______ operating system.
b.
The Supplier also accepts that it has been
supplied with sufficient information about the Equipment and the said operating
system to enable it to write the Programs in accordance with the Operative
Specifications for use with the Equipment and the said operating system.
c.
The Supplier shall not be entitled to any
additional payment nor excused from any liability under this Agreement as a
consequence of any misinterpretation by the Supplier of any matter or fact
relating to the functions, facilities and capabilities of the Equipment or the
said operating system.
Programs
Writing
a.
The Supplier shall write a series of
applications programs in __________ language operating under version _______of
the ____________ database management system [DBMS].
b.
The Database Management System shall provide
the facilities and functions set out in the Operative Specifications and shall
fulfill the Operation Criteria.
Alterations
If any alterations are made to the
Programs then, the Supplier shall make appropriate modifications to the
Operative Specifications, the Operating Manuals and the Guidance Plan to
reflect such alterations. The cost of such modifications shall be included in
the quotation given by way of an invoice.
Delivery
and installation of Program
a.
The Supplier shall at the agreed Phase
deliver to the Client:
i.
One copy of the object code of the Programs
in machine-readable form on the storage media as specified by the Client;
ii.
Certified copies of the data and results of
tests carried out by the Supplier on all parts of the Programs before delivery;
and
iii.
The Operating Manuals.
b.
The Supplier shall also successfully install
the Programs on the Equipment.
Operating
Manuals
The Supplier shall prepare and provide
the Client with... copies of a set of operating manuals containing sufficient
information to enable the Client to make full and proper use of the Programs in
combination with the Equipment and the Client's ___________operating system. If
the Client requires further copies of the Operating Manuals then, these will be
supplied by the Supplier at a reasonable charge.
Training
of staff / employee
The Supplier undertakes to provide
training in the use of the Programs for the Client's staff in accordance with
the Guidance Plan. Any additional training required by the Client shall be
provided by the Supplier upon reasonable written notice at its standard scale
of charges.
Agreement
for Maintenance
The parties shall enter into a separate
maintenance agreement on the Acceptance Date in respect of the Programs and the
Operating Manuals.
Meetings
of representatives
The parties shall ensure that their
Authorized representatives will meet every quarter to discuss and assess the
progress of the Services.
Provision
of required Information
The Client shall provide all information
and documentation reasonably requested by the Supplier to enable the Supplier
to prepare and write the Programs and the Operating Manuals. Such information
and documentation shall be subject to the provisions of confidentiality
contained in the agreement. The Client shall ensure that it provides the
Supplier with such access to its staff as may be reasonably required for the
purposes of the provision of the Services
Staff
/ employee
a.
The Services under the agreement shall be
provided by the employees of the Supplier named in Schedule _____________or
such other persons as may be approved by the Client in writing. If particular
Supplier's staff is crucial to the success of the project, the client may seek
commitments that they will work full time on the project and shall not be
removed from it without the client's consent.
b.
The Supplier agrees that the services
envisaged in this Agreement shall be performed by persons nominated by the
Supplier or such other persons as the Client approves in writing.
c.
The Supplier shall instruct the Client's
staff and provide technical advice that may be necessary for the use of the
program [s].
d.
The Supplier's personnel, while attending the
Client's Place of Use shall conform to the Client's normal codes of staff
practice.
e.
The Client shall ensure that the Supplier's
personnel are treated in the same manner and given the same respect as the
Client's staff.
f.
The Client shall guarantee a clean, healthy
and safe working environment for the Supplier's personnel whilst performing the
services envisaged in this Agreement.
III.
Consideration
1.
The Supplier shall send an invoice concerning
the Monthly Standing Charges to the Client on the _________day of each month.
2.
The Client shall make payment of such invoice
within... days of its receipt.
3.
The Budget shall be reviewed jointly by
representatives of both the parties at quarterly intervals.
4.
The Monthly Standing Charge for the remainder
of the Budget Year shall be appropriately adjusted if agreed upon.
5.
The aggregate payments made by the Client in
respect of Monthly Standing Charge shall be adjusted by means of a separate
payment at the end of each quarter.
6.
The Supplier shall not exceed the projected
expenditure in the Budget without prior written consent of the Client.
7.
Unless otherwise agreed between any deficit
in actual expenditure shall be credited to the Client by means of a Monthly
Standing Charge.
8.
Either party is entitled to charge the other
interest at the rate of _________% per annum on late payment of any amount due
until full payment of such amount.
IV.
Supplier's Warranty
1.
The Supplier warrants that the Programs will,
after acceptance by the Client, perform as set out in the Operative
Specifications when properly used with the Equipment and the said Client's
__________ operating system.
2.
The Operating Manuals and the Guidance Plan
will provide adequate instruction to enable the Client to make full and proper
use of the Programs in combination with the Equipment and the said operating
system without the need for reference to any other person or document.
3.
If the Supplier receives written notice from
the Client after the Acceptance Date of any breach of the said warranty then,
the Supplier shall at its own expense and as promptly as possible remedy the defect
or error in question unless the Supplier receives a written notice regarding
the defect after the expiry of ____________ months after the Acceptance Date.
4.
The Supplier's primary obligation is to
remedy breaches of warranty by the provision of materials and services promptly
and without charge to the Client, provided that the Supplier tails to conform
to its obligations and its liability for such failure.
4.
5.
The explicit terms of this Agreement conform
to all warranties, conditions, terms, undertakings and obligations implied by
statute, common law, trade usage, course of dealing or otherwise, all of which
are hereby excluded to the fullest extent permitted by law.
V.
Indemnity
1.
The Client will indemnify the Supplier
against all costs, claims, demands, expenses and liabilities arising out of or
in connection with any claim that the use by the Supplier of any information or
material supplied by the Client for the purpose of enabling the Supplier to
prepare and write the Programs and/or the Operating Manuals infringes any third
party intellectual property.
2.
The Supplier shall likewise indemnify the
Client against all costs, claims, demands, expenses and liabilities arising out
of or in connection with any claim that the Services provided by the Supplier that
infringe any third party intellectual property rights.
3.
The indemnifying party shall be granted
immediate and complete control of any claim of indemnity and the indemnified
party shall not prejudice the indemnifying party's defense of the claim.
4.
The indemnified party shall give the
indemnifying party all reasonable assistance at the expense of the indemnifying
party on such claim of indemnity.
VI.
Confidentiality
1.
Both parties undertake to each other to keep
confidential all information concerning the business and affairs of the other,
which has been obtained or received as a result of the discussions leading up
to or the entering into of this agreement save that which is:
a.
Inconsequential or obvious;
b.
Already in its possession other than as a
result of a breach of this clause; or c. Required by law.
2.
Each of the parties undertakes to the other
to take all such steps as shall from time-to-time be necessary to ensure
compliance with the provisions of the above clause by its employees agents and
subcontractors.
VII.
Intellectual Property Rights
1.
The copyright and all other intellectual
property rights of whatever nature shall be and shall remain vested in the
Supplier.
2.
The Supplier hereby grants to the Client with
effect from the Acceptance Date a nonexclusive and non-transferable license to
use and copy the Programs and the Operating Manuals for its own internal
business purposes.
3.
The Client shall not be entitled to
sub-license the use of the whole or any part of the Programs or the Operating
Manuals.
4.
The Client undertakes to treat as
confidential and keep secret all information contained or embodied in the
Programs, the Operating Manuals, and the Operative Specifications and in all
other specifications and documentation relating to the Programs and all
information conveyed to the Client by training.
5.
The Client shall not without the prior
written consent of the Supplier discloses any part of the Information to any
person except:
a.
The Client's own employees who need to know
such information;
b.
The Client's auditors, Tax authorities,
Customs & Excise and any other persons or bodies having a right, duty or
obligation to know the business of the Client and then only in pursuance of
such right duty or obligation;
c.
Any person who is from time-to-time appointed
by the Client to maintain any equipment on which the Programs are being used
and then only to the extent necessary to enable such person properly to
maintain such equipment;
d.
Any professional adviser of the Client in
connection with a dispute arising from this Agreement or the Client's use of
the Programs.
6.
The Client undertakes to ensure that the
persons and bodies mentioned in clauses 5(a), 5(b), 5(c) and 5(d) are made
aware prior to the disclosure of, any part of the Information that the same is
confidential and that they owe a duty of confidence to the Supplier.
7.
The Client shall indemnify the Supplier
against any loss or damage which the Supplier may sustain or incur as a result
of the Client failing to comply with such undertaking
8.
The Client shall promptly notify the Supplier
if it becomes aware of any breach of confidence by any person to whom the
Client divulges all or any part of the Information and shall give the Supplier
all reasonable assistance in connection with any proceedings that the Supplier
may institute against such person for breach of confidence.
VIII.
Force Majuro
Notwithstanding anything to the contrary
in this Agreement, neither Party shall be liable by reason of failure or delay
in the performance of its duties and obligations under this Agreement if such
failure or delay is caused by acts of God, war, riot, fire, civil commotion,
strikes, lock outs, embargoes, any orders of governmental, quasi-governmental,
or local authorities or any other similar cause beyond its control and without
its fault or negligence.
IX.
Termination of Agreement
1.
This agreement may be terminated under the
following circumstances:
a.
Immediately by the Installer if the Client
fails to pay any sum due under this agreement within _____________days of its
due date;
b.
Immediately by either party if the other
commits any material breach of any term of this agreement and which has not
been remedied within ________days of a written request to remedy the same; and
c.
Immediately by either party if the other
party takes steps for the voluntary winding up or enters into any arrangement
with its creditors or if an official liquidator is appointed in respect of all
or any part of the business or assets of the other party or other steps are
taken for the winding up of the other party
2.
Any termination of this agreement pursuant to
this clause shall be without prejudice to any other rights or remedies a party
may be entitled to under this agreement or under law and shall not affect any
accrued rights or liabilities of either party nor the coming into or
continuance in force of any provision hereof which is expressly or by
implication intended to come into or continue in force on or after such
termination.
X.
Governing Law and dispute resolution
1.
1 This Agreement shall be construed in
accordance with the law of India.
2.
2 Any dispute, difference, controversy or
claim arising between the Parties out of or in relation to or in connection
with this Agreement, or the breach, termination, effect, validity,
interpretation or application of this Agreement or as to their rights, duties
or liabilities hereunder, shall be settled by the Parties by mutual
negotiations and agreement. If, for any reason, such Dispute cannot be resolved
amicably by the Parties, the same shall be referred to and settled by way of
arbitration proceedings by three arbitrators, one to be nominated by each Party
and the third to be appointed by the two appointed arbitrators. The arbitration
proceedings shall be held in accordance with the Arbitration and Conciliation
Act, 1996, or any subsequent enactment or amendment thereto (the
"Arbitration Act"). Each of the Parties shall appoint an arbitrator
within thirty (30) days of the receipt by a Party of the other Party''s request
to initiate arbitration. The two arbitrators so appointed shall then jointly
appoint a third arbitrator within thirty (30) days of the date of appointment
of the second arbitrator, which third arbitrator shall act, as the Chairman of
the tribunal. Arbitrators not appointed within the time limit set forth in the
preceding sentence shall be appointed in accordance with the Arbitration Act.
The decision of the arbitrators shall be final and binding upon the Parties.
The venue of arbitration proceedings shall be ____________ The language of the arbitration
and the award shall be English.
XI.
Interpretations of certain terms and
references
In this agreement unless otherwise
specified following interpretation shall be applicable:
1.
Reference to a Subsidiary or Holding Company
is to be interpreted in accordance with the Companies Act 1956;
2.
Reference to a party is reference to a party
of this agreement and this includes the party's permitted assignees and/or the
respective successors in title to the whole undertaking;
3.
Reference to a person includes any person,
individual, company, firm, corporation, government, state or agency of a state,
or any undertaking regardless of it having a legal representative or not and
notwithstanding of the law under which it exists;
4.
Reference to any statute or statutory instrument
or any of its provisions shall be interpreted as a statute or statutory
instrument or provision that is re-enacted or amended from time-to-time;
5.
All words/terms denoting the singular shall
include the plural and vice versa; and all words/terms denoting any gender
shall include all genders;
6.
All references to clauses and Schedules shall
be interpreted as references to clauses or Schedules of this agreement.
XII.
Alteration and Modification
Any alteration or modification or waiver
in connection with this contract will not be effective unless made in writing
and signed by both the parties.
XIII.
Severance
Invalidity or unenforceability of any
term of this agreement shall not render the other provisions and the remainder
of the agreement invalid or unenforceable and the agreement shall remain in
full force and effect.
XIV.
Entire Agreement
This Agreement and the Schedules and
Annexures hereto represent the entire agreement as to the subject, matter
hereof, and supersede any and all prior understandings between the Parties on
the subject-matter, hereof.
XV.
Assignment
Neither of the Parties hereto shall be
entitled to assign this Agreement or any of their rights, powers, obligations
and/or duties hereunder without the prior written consent of the other Party.
XVI.
Duration
This agreement is effective
w.e.f..................... and shall terminate on..........................
unless both parties decide to extend the agreement by informing each other in
writing.
XVII.
Notices
All notices and other communications
under this contract must be in writing, and must be mailed by registered or
certified mail or any other form of communication [fax/email] at the following
address:
To CLIENT
.....................................
......................................
To SUPPLIER
.....................................
......................................
XVIII.
Waiver
Save where this Agreement expressly
provides, neither Party shall be deemed to have waived any right, power,
privilege or remedy under this Agreement unless such Party shall have delivered
to the other Party a written waiver signed by an authorised officer of such
waiving Party. No failure or delay on the part of either Party in exercising
any right, power, privilege or remedy hereunder shall operate as a waiver,
default or acquiescence thereof, nor shall any waiver on the part of either
Party of any right, power, privilege or remedy hereunder operate as a waiver of
any other right, power, privilege or remedy, nor shall any single or partial
exercise of any right, power, privilege or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power,
privilege or remedy hereunder.
XIX.
Insurance
The Supplier shall maintain throughout
the term of this agreement, with an insurer of good repute, indemnity/insurance
comprehensively covering all his obligations for a sum of not less than
Rs...........
(Rupees............................)
XX.
Authorized Signatory
Both parties shall provide information
in writing regarding the authorized signatories for this contract along with
their respective names and designations.
The contracting parties assume that the
respective authorized signatories are the person recognized for the purpose of
signing the contract in conformity with the authorisation of the Company
XXI.
Non-Solicitation of Staff
For the purposes of this contract, both
parties agree not to solicit either directly or indirectly with a view to
provide or offer employment to, offer to contract with or encourage a staff
member of the other party to leave without the prior written consent of the
other during the term of this agreement and for an additional period of
___________ days after termination.
XXII.
Regulation of foreign exchange
Both the parties agree to be governed by
the Laws of India regarding the use of foreign exchange in their transactions.
XXIII.
Legal expenses and charges
The succeeding party shall be entitled
to reasonable litigation and professional fees along-with the out of pocket
costs incurred in connection with dispute resolution arising between the
parties with matters pertaining to this Agreement.
XXIV.
Genuine Software
Both parties agree that the software
that is required to be used for the purposes as envisaged under this Agreement
shall be genuine and registered software and not a pirated version of any
nature.
XXV.
Warranty of Software
The Supplier warrants to the Client that
the software that has been agreed to be part of the equipment to be supplied as
envisaged under this Agreement shall be the genuine and registered version and
shall not be a pirated version/copy of any nature.
XXVI.
Injury resulting during Installation of
Software
The Client shall not be liable for any
Injuries occurring to the Supplier's staff while installing the Software at the
Place of Use unless such staff belongs to the Client.
XXVII.
Injury While Using the Software
The Supplier warrants that the Equipment
provided to the Client shall not cause any physical harm or injury or otherwise
to any of the Client's staff or the user of the Program [s]. If such Software
causes physical harm or injury or otherwise, the Supplier agrees to compensate
the Client [in terms of incurred expenditure] and rectify the Program [s] free
of charge.
XXVIII.
Damage to Other Program [s]
1.
The Supplier warrants that the Software shall
not damage, destroy or corrupt any other Software belonging to the Client,
provided the Client executes and implements all the required networking related
measures and safeguards as stated in the manual.
2.
However, subject to the foregoing clause, if
the Software damages, destroys or corrupts the Client's Equipment, the Supplier
shall rectify/replace such damaged, destroyed or corrupted Software free of
charge.
3.
To this effect, the Client is under an
obligation to bring it to the notice of the Supplier about the nature and
extent of the damage that has taken place. On the basis of which, the Supplier
may send its team of personnel to evaluate and assess the incident and
consequently ensued damage.
XXIX.
Warranty of Program [s]
The
Client warrants to the Supplier that the Program[s] shall be used only for the
purposes envisaged in this Agreement and shall not be used for any other
purpose other than what has been mentioned in this Agreement.
XXX.
Compliance with Legal Requirements
The Supplier undertakes for the purpose
of Sale/Lease/Rent that it has fulfilled all the applicable legal Requirements,
Procedures and Formalities, as envisaged by the different laws, rules,
regulations, byelaws, procedure and formalities.
XXXI.
Harmful Effects of Program [s]
The Supplier shall bring to the notice
of the Client beforehand harmful effects, if any, of using the Program[s]
XXXII.
Survival of certain clauses
The Clauses of this Agreement, which by
nature are intended to survive termination of this Agreement shall remain in
effect after such termination.
IN WITNESS, where of the Agreement has
been entered into between the parties on the day and year first above written
CLIENT'S NAME
__________________________
ADDRESS
__________________________
SIGNATURE [of Authorized Signatory]
__________________________
SUPPLIER'S NAME
__________________________
ADDRESS
__________________________
SIGNATURE [of Authorized Signatory]
__________________________
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