Software Services Agreement

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.

    I.       
 

    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.

a.     

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.

   I.       
 

   II.       
 

   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.

   I.       
 

   II.       
 

   III.       
 

   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.

    I.       

 

    II.       
 

    III.       
 

    IV.       
 

    V.       
 

    I.       
 

    II.       
 

    III.       

 

    IV.       
 

    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.

   I.       

 

   II.       
 

   III.       
 

   IV.       
 

   V.       
 

   VI.       
 

   I.       
 

   I.       

 

   II.       
 

   III.       
 

   IV.       
 

   V.       
 

   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.

I.       
 

II.       
 

III.       
 

IV.       

 

V.       
 

VI.       
 

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 non-exclusive 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.

I.       
 

I.       
 

II.       
 

III.       
 

IV.       
 

V.       
 

VI.       
 

VII.       
 

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.

    I.       
 

    II.       
 

    III.       

 

    IV.       
 

    V.       
 

    VI.       
 

    VII.       
 

    VIII.       
 

    IX.       
 

    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.

   I.       

 

   II.       
 

   III.       
 

   IV.       
 

   V.       
 

   VI.       
 

   VII.       
 

   VIII.       

 

   IX.       
 

   X.       
 

   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.

I.       

 

II.       
 

III.       
 

IV.       
 

V.       
 

VI.       
 

VII.       
 

VIII.       

 

IX.       
 

X.       
 

XI.       
 

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, bye-laws, 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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