This Contract for the provision of Services (the “ Agreement ”) is entered by and between this ____ day of ____________ :
(1) BORA SOFTWARE LTD., a company incorporated and existing under the laws of England, with its principal place of business located at 32 London Road, Guildford GU1 2AB, acting in its own name and in the name of any and all legal entities and companies controlled directly or indirectly by BORA SOFTWARE LTD, represented herein by its Director, _____________________
(hereinafter referred to as "BORA"),
(2) XXXXXXX a company incorporated and existing under the laws of ________________ having its head office at ______________________________________________
(hereinafter referred to as the “COMPANY”)
The parties being also referred to collectively as “the Parties” or individually as “Party”.
BORA provides software development and related technical services to various industries;
The Company desires to engage the services of BORA to develop certain software for use by the Company;
The purpose of the present agreement is to set forth the terms and conditions under which BORA shall develop and test, with the COMPANY collaboration, the Software described in the technical specifications in Annex 1, the financial conditions of this development being stated in Annex 2.
NOW, THEREFORE, the Parties agree as follows:
Under the present Agreement, BORA shall proceed in consideration of the Price and financial conditions in Annex 2, to the development, test and acceptance (hereinafter referred to as the "Assignment") of the Software (“Product Software”, “Software” or “Product”) described in the specifications attached in Annex 1. Any other documents or agreements, whether oral or written, not attached to the present Agreement, shall have no contractual value and shall not bind the Parties.
The COMPANY shall define the specifications, requirements, and deliverables (the “Specifications). The Specifications and functionalities are described in Annex 1. Annex 3 specifies the acceptance conditions and procedure.
The COMPANY undertakes to supply to BORA all elements in its possession, necessary for BORA to perform its obligations under the present Agreement.
3.1 BORA is responsible for ensuring that the Assignment is performed in a professional manner and in accordance with the state of the art applicable in the industry/branch when the services are rendered. BORA shall design, develop and implement the Software in accordance with the Specifications in Annex 1.
3.2 The COMPANY shall provide BORA with such documents and such assistance as is required for the performance of the Assignment.
3.3 BORA shall perform the Assignment in close co-operation with the COMPANY's representative(s) assigned to the project.
3.4 Any approval or notification shall be made in writing through notes entered in minutes or similar documents.
4.1 BORA is responsible for ensuring that its personnel/contractors assigned to the Project have the necessary skills to perform their duties skilfully.
4.2 BORA shall appoint a Project Representative for the duration of the Project that shall ensure that sufficient resources are assigned to the Project. The COMPANY acknowledges that from time to time BORA uses both third party contract labor and employees of the contractor to complete a portion of the contracted work. Any third party or employee contracted by BORA to perform services to the COMPANY are subject to the same proprietary rights, confidentiality, warranties and indemnification as outlined in this Agreement.
5.1 BORA shall use reasonable efforts to deliver the Software to the COMPANY in accordance with the Specifications, within the time period stated in Annex 1.
5.2 Each Party shall immediately notify the other Party in the event any delay is anticipated. If appropriate, each Party’s representative will immediately commence negotiations with respect to measures which can be taken in order to reduce any delay or, alternatively, reduce any inconvenience caused by the delay.
5.3 To the extent that a delay not attributable to BORA can be eliminated through increased resources, BORA will be responsible for such complementary resources to the extent that these are available. BORA will be entitled to fair and adequate compensation for such additional resources pursuant to separate agreements between the Parties. No complementary resources will be allocated by BORA until and unless the Parties have agreed on an adequate compensation.
5.4 The time schedule for the testing must be agreed upon by both Parties and attached in Annex 4. In case the time schedule is defined during the course of execution of the Agreement, ie after the start of the Assignment, the testing time schedule will be agreed upon between the Parties, which both have an obligation to negotiate in good faith.
5.5 NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY LOSS OR EXPENSE, OR ANY LOSS OF PROFIT, ARISING FROM ANY DELAY IN THE DELIVERY OF, OR FAILURE TO DELIVER ANY DELIVERABLE UNDER THIS AGREEMENT EXCEPT WHERE SUCH DELAY OR FAILURE IS CAUSED BY THE NEGLIGENCE OR WILFUL DEFAULT OF THE PARTY.
BORA shall have the right to subcontract part or all of its undertakings under this Agreement as BORA deems appropriate. BORA shall remain responsible to the COMPANY for the performance by the subcontractors, as if performed by BORA.
7.1. Delivery. When the development of the Software is completed and BORA has finalised testing, the Software will have to be approved by the COMPANY according to the testing specifications agreed upon by both Parties before the beginning of the Project.
7.2. Testing specifications and schedule The COMPANY and BORA shall ensure that the tests specifications for the Software are frozen and ready for use not later than one (1) month prior to the commencement of the tests. The COMPANY shall be responsible, with the assistance of BORA, for conducting the tests.
7.3 Acceptance Period. The COMPANY will have 30 (thirty) calendar days following the date of delivery OR installation to assess and test the Software. The Software will be assessed according to the error severity table in Annex 3-Acceptance Conditions and Procedure. Following this assesment by the COMPANY, that must be notified in writing to BORA, BORA shall have 8 (eight) business days in order to prepare an Action Plan relating to the correction of errors. Bora shall be deemed to have delivered the Software Product when all Severity One errors have been corrected so they have completely disappeared or have been downgraded to a lower level of severity.
7.4 Completion. If BORA, in the COMPANY'S opinion, delivers the Software in accordance with the Specifications, then BORA will be deemed to have completed its delivery obligations.
7.5 Rejection. If BORA, in the COMPANY's opinion, fails to deliver the Software in accordance with the Specifications, the COMPANY shall detail in writing its grounds for rejection. In that case, BORA shall promptly use reasonable efforts to correct the Software, in which case upon delivery of the corrected Software, the process of acceptance testing will restart.
7.6 Continued Failure. If BORA’s corrections, in the COMPANY's opinion, fail to deliver the Software in accordance with the Specifications, then the COMPANY may elect to either terminate this agreement or adjust the Specifications accordingly.
7.7 No notification by the COMPANY. Where the COMPANY fails to notify BORA in writing within (period of time to be completed) after the commencement of testing or any other time separately agreed for each Assignment, as to whether or not the COMPANY approves the Software, the Software shall be deemed approved by the COMPANY. The aforesaid shall not apply where the COMPANY 's delay is due to circumstances beyond the COMPANY' control in accordance with Section 10 “Force Majeure”.
7.8. Installation. BORA will be responsible for conducting all activities required to install the Software at the COMPANY’s premises.
8.1 The Parties shall be liable, subject to the limitations set forth below, for any material breach of their respective obligations under this Agreement.
8.2 Liability for damages as a consequence of any material breach of the Parties obligations under this Agreement, only extends to compensation for direct damages. It does not extend to indirect damages such as loss of profits, expected savings, loss of income and other losses as defined below. BORA' liability does not extend to damage attributable to COMPANY, for example, as a result of COMPANY having deliberately failed to disclose or having provided misleading information.
8.3 NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE AGREEMENT, BORA AND ITS SUPPLIERS SHALL UNDER NO CIRCUMSTANCES WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY OR ANY OTHER THEORY OF LIABILITY, BE LIABLE TO THE COMPANY FOR INDIRECT INCIDENTAL OR CONSEQUENTIAL LOSS INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR CONTRACTS, LOSS OF REVENUE, LOSS OF OPPORTUNITY, BUSINESS DISRUPTION OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF BORA HAS BEEN INFORMED BY THE COMPANY OF THE POSSIBILITY THAT THE COMPANY COULD SUFFER SUCH DAMAGES.
8.4 In the event of delay, section 9 DELAYS IN DELIVERY shall apply.
8.5 BORA' TOTAL LIABILITY AS A CONSEQUENCE OF THE ASSIGNMENT IS LIMITED IN AGGREGATE TO THE TOTAL AMOUNT ACTUALLY PAID BY COMPANY TO BORA FOR THE SERVICES OR DEVELOPMENT OF THE SOFTWARE.
Neither party shall be liable for any delay in performance caused by circumstances beyond its reasonable control and the party in delay shall be entitled to a reasonable extension of time for performance. As used herein the term "force majeure" shall mean and include without limitation any Act of God, industry wide strikes, explosion, fire, flood, war and other hostilities, civil commotions , governmental acts, regulations or orders, or any other circumstance of a similar nature beyond the reasonable control of a Party.
10.1 BORA shall, at its own cost and expense, defend any action brought against the Customer to the extent that it is based on a claim that the Product constitutes an infringement of any third party U.S. or UK registered patent, registered trademark or copyright, provided that the Customer: (1) notifies BORA within thirty (30) days of any alleged infringement, and (2) makes no admission without Bora’s written consent, and (3) assists BORA to conduct all negotiations and litigation, if requested by BORA.
10.2 BORA is authorised, at its own expense, to defend or, at its option, to settle the claims. In the event that the Product is held by a final court decision to constitute an actual infringement of any third party U.S. or UK registered patent, registered trademark or copyright, BORA shall at its own costs and sole option, either obtain the right for the Customer to continue using the Product, or to replace or modify the Product so that it becomes non-infringing, or to reimburse the Customer of the amount actually paid by the Customer under this Agreement.
10.3 BORA SHALL HAVE NO LIABILITY, AND COMPANY SHALL FULLY INDEMNIFY BORA AND ITS ASSIGNEES AGAINST ALL ACTIONS, CLAIMS, LIABILITIES, DEMANDS, COSTS, DIRECT CHARGES AND EXPENSES RESULTING FROM ANY CLAIM OF INFRINGEMENT DIRECTLY DUE TO :
10.4 ENTIRE LIABILITY. THIS CLAUSE STATES THE ENTIRE LIABILITY AND THE ONLY REMEDIES OF BORA IN CASE OF INFRINGEMENT OF A THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
11.1. Limited Service Warranty. BORA warrants to the Company that the Services will be performed in a professional and workmanlike manner, and in accordance with the requirements, if any, specified herein and in any Amendment.
11.2. Limited Product Warranty. BORA warrants to the Company that the Product will function in accordance with the requirements as set forth in Annex 1. To the extent that the Product does not function in accordance with the requirements as set forth in Annex 1, the Company shall modify and/or replace the Product or any part thereof as it deems reasonably necessary, at its sole discretion, as required for the Product to function in accordance with the requirements as set forth in Annex 1. This warranty shall remain in effect for sixty (60) days from the date that the Product is accepted as set forth in Section 7 of this Agreement and shall cover any deficiencies identified to BORA in writing by the Company during such period.
11.3. No Warranty for Third Party Materials. BORA makes no representation or warranty regarding third party services, or any software or hardware acquired by the Company or BORA from a third party, and all such third party services, software and hardware is provided “AS IS” and “WITH ALL FAULTS.” To the extent that any warranties for third party hardware or software are provided to BORA, BORA shall pass such warranties through to the Company, to the extent that it is able.
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, BORA MAKES NO OTHER WARRANTY OF ANY KIND TO THE COMPANY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, THE DELIVERABLE, THE RESULTS OBTAINED FROM THE SERVICES OR ANY SOFTWARE USED BY THE COMPANY, IF ANY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY THE COMPANY AND WAIVED BY THE SPONSOR.
13.1 COMPANY shall follow all reasonable instructions that BORA gives from time to time with regard to the use of trademarks, copyrights or other notice of ownership rights of BORA or its suppliers.
13.2 COMPANY shall clearly mention in any communication referring to the Software that the Software is BORA's property. If BORA so requests, COMPANY shall affix to all packaging and material embodying the Software a trademark nominated by BORA.
13.3 Pre-existing rights
13.3.1 Each Party shall retain its pre-existing proprietary rights which could be used in the development of the Software and ownership of all patents, copyrights, trademarks, trade names, trade secrets, mask work rights and other proprietary rights relating to or residing in the pre-existing technology. These rights shall remain exclusively with such Party and no licence is hereby granted to the other party in this respect.
13.3.2 Each Party shall retain its pre-existing proprietary rights which could be used in the development of the application Software and ownership of all patents, copyrights, trademarks, trade names, trade secrets mask work rights and other proprietary rights relating to or residing in the pre-existing technology. These rights shall remain exclusively with such Party and no licence is hereby granted to the other party in this respect.
13.3.3 Each Party may from time to time choose to register its patents, copyright, or trademark interests in its pre-existing technology but such acts shall not cause or be construed as causing any part of the pre-existing technology to become part of the public domain.
13.4 License grant
13.4.1 BORA retains copyright in the result of the Assignment, program, Software, documentation and such like, as well as any other intellectual and/or industrial property rights in the results of the Assignment, which COMPANY has ordered and which BORA has developed or prepared in the course of performance of the Assignment pursuant to this Agreement ; BORA retains copyright in methods, system methods, and suchlike which are developed by Supplier shall also vest exclusively in BORA.
13.4.3 Only BORA excluding COMPANY and/or any third party may be entitled to alter, modify, translate, develop, improve and transfer the results of the Assignment, program, application Software, documentation and such like, in which BORA retains any and all intellectual and industrial property rights.
13.4.4 No source code is hereby nor will be disclosed to COMPANY and no right to any source code is hereby granted to COMPANY .
COMPANY agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of BORA, its affiliates and subsidiaries, and that is generally understood in the industry as being confidential and/or proprietary, is the exclusive property of BORA, its affiliates or subsidiaries, as applicable. COMPANY agrees to hold in a fiduciary capacity for the sole benefit of BORA all secret, confidential or proprietary information, knowledge, data, or trade secret (“Confidential Information”) relating to BORA or any of its affiliates, subsidiaries, or their respective clients, which Confidential Information shall have been obtained during the course of execution of the present Agreement with BORA. COMPANY agrees that it will not at any time, either during the Term or after the termination of this Agreement, disclose to anyone any Confidential Information, or utilize such Confidential Information for its own benefit, or for the benefit of third parties.
Unless otherwise agreed, BORA shall, during the liability period, hold an adequate amount of liability insurance as security for the fulfilment of liability in direct damages in accordance with applicable law and the present Agreement. BORA shall, at the request of COMPANY, provide a certificate of insurance valid for the duration of the period of liability.
The Customer acknowledges that the Products licensed or sold hereunder are subject to the export control laws and regulations of the European Union (EU), United Kingdom (UK) or the United States of America (USA). The Customer confirms that with respect to the Products, it will not export or re-export them, directly or indirectly either to:
The Customer also confirms that the Products will not be sold or licensed to an end user who the Customer knows or has reason to know will utilise the Products directly or indirectly in restricted activities. Information can be found at https://eeas.europa.eu. The Customer further acknowledges that the Products may include technical data subject to export and re-export restrictions imposed by EU, UK or US law and international regulations.
17.1. The Agreement may be terminated forthwith by written notice from either Party if:
17.2. The Agreement may be terminated forthwith by written notice from BORA if:
18.1. The Agreement supersedes all prior agreements, arrangements and understandings between the Parties and constitutes the entire Agreement between the Parties relating to the subject matter hereof.
18.2. The Customer warrants to BORA that it has not been induced to enter into the Agreement by any prior oral representation (whether innocently or negligently made) except as specifically contained in the Agreement.
BORA may sub-contract all or any of its obligations under the Agreement to a competent third party. Except for this, neither Party shall assign or otherwise transfer any of its rights or obligations under the Agreement.
20.1. Notices must be in writing and sent to the address of the recipient set out in the Agreement or the recipient's registered office or such other address as the recipient may designate.
20.2. Any such notice may be delivered personally or by first class Recorded Delivery letter and shall be deemed to have been served if by hand when delivered, if by Recorded Delivery upon signature of the recipient or of the person who accepted the letter on his/her behalf.
21.1 Amendments. This Agreement may be amended only by a written amendment executed by all of the Parties hereto.
21.2 Entire Agreement. This Agreement sets forth the entire understanding of the Parties hereto with respect to the subject matter hereof, and supersede all prior contracts, agreements, arrangements, communications, discussions, letters of intent, negotiations, representations and warranties, whether oral or written, between the Parties.
21.3 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together will constitute one and the same instrument.
21.4 No waivers. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
21.5 Third Parties. Nothing in this Agreement is intended, or shall be construed, to confer upon or give any Person or entity other than BORA and the Customer any rights or remedies under or by reason of this Agreement.
21.6 Schedules, Annexes and Exhibits. The Schedules, Annexes and Exhibits attached to this Agreement are incorporated herein and shall be part of this Agreement for all purposes.
21.7 Headings and Titles. The headings and titles in this Agreement are solely for convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.
21.8 Severance. If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provisions in question shall not be affected.
THE CUSTOMER AGREES THAT SOFTWARE SHALL NOT BE DEEMED TO BE GOODS BUT INTANGIBLE PROPERTY. THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (VIENNA, 1980) ARE EXPRESSLY EXCLUDED FROM THE PRESENT CONDITIONS.
The Agreement shall be governed by and construed in accordance with the laws of England to the exclusion of its conflict of laws rules and shall be subject to the exclusive jurisdiction of the English Courts including in case of injunction, injunctive relief and emergency proceedings.