Custom Software Development Agreement (India)

Custom Software Development Agreement for use in India.

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This kit includes tools and guidelines to assist you in drafting a Custom Software Development Agreement.

A Custom Software Development agreement is an agreement between a customer and software developer whereby the software developer will create software according to specifics provided by the customer.

This type of agreement is important because it not only defines the rights and obligations of both parties to the contract, but it was also help the parties avoid and potential confusion which could result in length delays, additional expense and litigation.

Among others, this form includes the following key provisions:
  • Parties to Agreement
  • Definitions
  • Scope of services
  • Commercial terms and conditions for Software Product
  • Delivery & Warranty
  • Consideration and Payment
  • Annual Maintenance Charges
  • User Acceptance Test (UAT)
  • Responsibilities of Customer & Developer
  • Ownership of Software Product & Background technology
  • Marketing and Sales of Licenses
  • Confidentiality & Non-Competition
  • Limitation of liability
  • Non-solicitation of Developers employees
  • Termination
This attorney-prepared Custom Software Development Agreement packet contains:
  1. Description and Instructions for Custom Software Development Agreement
  2. Custom Software Development Agreement for use in India
Law Compliance: This form is designed for use in India.
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.












Custom Software Development Agreement
(India)










This Packet Includes:
   1. General Information
   2. General Instructions
   3. Custom Software Development Agreement






General Information
Custom Software Development Agreement
(India)

A Custom Software Development agreement is an agreement between a customer and software developer whereby the software developer will create software according to specifics provided by the customer.  

This type of agreement is important because it not only defines the rights and obligations of both parties to the contract, but it was also help the parties avoid and potential confusion which could result in length delays, additional expense and litigation.





General Instructions
 Custom Software Development Agreement
(India)

This kits sample custom software development agreement includes general provisions customarily included in such agreements. It is suitable to any size of software project.  

Purpose of this agreement

   This is an agreement between the customer and software developer for purpose of development of software. It defines the rights and obligations of both parties to the contract. It includes details of the development of software, maintenance, payment terms, training, ownership, confidentiality, warranties, intellectual property, governing law, etc. It will guide the relationship between software developer and a customer. It also helps to protect against service-related problems in the future.

To whom this agreement is useful?

   This agreement is used by: i) a software developer (company or individual) who develops software for clients (local or international); or ii) a company or individual who hires software developer for development of software.

Benefits of this agreement

   Suits any type of software development
   Covers all legal aspects
   Protects both contracting parties
   Written in simple user friendly English

Contents of the Agreement

   Parties to Agreement
   Recitals
   Definitions
   Scope of services
   Commercial terms and conditions for Software Product
    

Delivery
   Warranty
   Consideration and Payment
   Annual Maintenance Charges
   Taxes
   Other Expenses
    

User Acceptance Test (UAT)
   Responsibilities of Customer
   Responsibilities of Developer
   Ownership of Software Product
   Ownership of Background technology
   Marketing and Sales of Licenses
   Term
   Representations
   Confidentiality
   Non-Competition
   Limitation of liability
   Independent Contractor
   Non-solicitation of Developers employees
   Termination
   Force Majeure
   Severability
   Entirety
   Assignment
   Amendment
   Governing law and dispute resolution
   Attorney fees
   Notices
   Headings
   Counterparts






DISCLAIMER:

FindLegalForms, Inc. (“FLF”) is not a law firm and does not provide legal advice.  The use of these materials is not a substitute for legal advice. Only a lawyer/advocate/solicitor/barrister can provide legal advice.  A lawyer/solicitor/barrister should be consulted for all serious legal matters.  No Lawyer-Client / Solicitor-Client /Advocate-Client relationship is created by use of these materials.  
THESE MATERIALS ARE PROVIDED “AS-IS.  FLF DOES NOT GIVE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR COMPLETENESS FOR ANY OF THE MATERIALS FOR YOUR PARTICULAR NEEDS.  THE MATERIALS ARE USED AT YOUR OWN RISK.  IN NO EVENT WILL:  I) FLF, ITS AGENTS, PARTNERS, OR AFFILIATES; OR II) THE PROVIDERS, AUTHORS OR PUBLISHERS OF ITS MATERIALS, BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATE OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER USED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THESE MATERIALS. 



The use of these materials is subject to the “Terms and Conditions” found at findlegalforms.com.

Custom Software Development Agreement

This Agreement (Agreement”) is made on this _____of day of ___________ 2009.

BETWEEN

___________ (Name of the Customer) having its registered office at ____________ (Address of customer) (hereinafter referred to as, Customer which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns) of the First Part

AND
___________ (Name of the Software developer), a Company incorporated under the Companies Act, 1956 and having its registered office at ____________ (Address of Software developer) (hereinafter referred to as Developer, which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns) of the Other Part.
Customer and Developer are hereinafter collectively referred as “Partiesand individually as “Party”.
RECITALS
Customer is desirous of engaging Developer as an independent contractor to develop the computer software ___________________ (describe the type of software to be developed) as per specifications described in Exhibit-A, hereinafter for brevity sake be referred to as Software Product.

Developer desires to develop Software Product to Customer on the terms and conditions as set forth in the Agreement.

1. DEFINITIONS:

In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:

1.1   "Accepted"

Means, in relation to Software Product, that the Customer has issued an acceptance certificate following the passing of the Acceptance Tests relating thereto and "accept", “acceptance” has a corresponding meaning.

1.2   “Acceptance Date

Shall mean, in relation to the Software Product, the date in an acceptance certificate issued by Customer, certified by the Customer as the date when the Software Product are Accepted by Customer.


1.3   “Licenses

License to use the Software Product.

1.4   “Manuals

Operating and technical manuals to be supplied by Developer along with the Software.

1.5   “Purchase Order

Order placed by Customer for the Software Product and /Licenses.

1.6   “Services

Services to be provided by developer under this Agreement.

1.7   “Site

Customers office at _____________ and/or any other office designated by Customer.

1.8   "Software Product



(Briefly specify description of Software Product to be developed)




2. SCOPE OF THE SERVICES

Developer shall develop Software Product as per specifications in Exhibit-A, which shall be part of this agreement, within _____________ (Specify the date of completion of Software Product).

Developer grants the following Licenses to Customer:
License to use _________________________ (Specify the name of Software Product) hereinafter for brevity sake be referred to as Licenses”.


 2.1  SOFTWARE PRODUCT OVERVIEW

______________ (Name of Software Product) is a Software Product, which is for _______________________ (Specify purpose of software Product). 

The Software Product to be licensed by Developer shall comprise of following:
____________________________________________________________________________
_______________________________________________________ (list of Software Product)


3. Commercial Terms and Conditions for Software Product

Developer shall deliver the Software Product on the following terms and conditions herein mentioned below:

3.1 Delivery

The Software Product shall be delivered within __ days of receiving the Purchase Order with advance.

3.2 Warranty

THE SOFTWARE PRODUCT FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE PRODUCT.  

OR

Express Warranties:

Developer shall extend warranty support for a period of _____ months from date of installation without any cost. After the expiry of ___ months/ year from the Acceptance Date, Annual maintenance (Specify the period of maintenance as agreed between parties) charges shall be paid by Customer to Developer in advance.

The warranty support entitles Customer for the following:

a.   Telephonic consultation, assistance and advice with respect to technical queries.

b.   One man month of efforts for customization is included in warranty period. (Specify as agreed between parties)

c.   Corrections to errors reported in the current release of the program (s) as and when the same are made available by Customer.

d.   Warranty terms for Software Product are limited to replacement of defective Software Product and do not include re-installation. Any re-installation shall be charged separately at customization rates.

e.   Free software updates/patches to the Software Product as and when they become available during the support period. In case Customer introduces new functionality as optional, separately priced Product, the same shall not be included as free update.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.    


3.3 Consideration and Payment
a) The price for Software Product shall be Rs. ____________ plus taxes all payable in advance on the placing of Purchase Order. This agreed price is valid for period of one year from date of this Agreement and Customer needs to place the Purchase Order for the same before the said time period to avail the same. Software Product shall be delivered within ___ months from the date of Purchase Order.
b) The total consideration at which Developer shall deliver the Licenses is Rs ____________ plus taxes as applicable. Customer shall make payment to Developer in accordance with Exhibit-B of this Agreement.
d) Any customization shall be at a rate of Rs. _________ per month plus applicable taxes which shall be subject to revision by mutual agreement after a period of __ months/ years from the date of this Agreement.
e) Late payments by Customer shall be subject to late penalty fees of ____% per month from the due date until the amount is paid.  

3.4 Annual Maintenance Charges

After the expiry of ____ months/year from the Acceptance Date an annual maintenance charge shall be payable by Customer to Developer towards the maintenance of the Software Product. The charges of the same shall be ____% of the total consideration and shall be payable in advance.

3.5 Taxes

The total consideration as stated above in clause 3.3 is excluding any taxes and duties. For the Software Product and/ Licenses VAT of 4% shall be applicable and for customization and facility management 12.36% service tax shall be applicable.

3.6 Other Expenses

Any communication, travel, boarding and lodging charges if any incurred by developer for providing the services under this Agreement shall be billable to Customer. Customer shall be liable to make payment only against submission of invoices.


3.7 User Acceptance Test (UAT)

The Acceptance Tests shall be carried out by Customer as per the acceptance test document agreed between Developer and Customer. The Acceptance Test shall be completed by Customer within __ weeks from the date indicated by Developer.  Customer shall issue an acceptance certificate stating that the Software Product has been accepted by Customer and the Acceptance Date.  In case of non-completion by Customer, the Software Product shall be deemed to be accepted on the expiry of ___ weeks from the date of its installation.



4. RESPONSIBILITIES OF CUSTOMER

a.   Employ one suitably qualified person to co-ordinate the activities relating to the implementation of the Software Product and to manage day to day technical administration / operations.

b.   Procure and install the necessary hardware, licensed system software, networking equipment, etc.

c.   Provide facilities for conducting training at the server location.

d.   To obtain necessary regulatory clearances/approvals for the operation of the Software Product purchased.


5. RESPONSIBILITIES OF DEVELOPER

a.   Developer shall take the complete responsibility for implementation of Software Product.

b.   Developer shall provide minimum support for a period of _____ months/years from the date of this Agreement subject to the commercial terms and conditions as mentioned in this Agreement.

c.   Developer shall deploy the required team of engineers to see that project for the implementation of the Software Product is executed in time.

d.   Developer shall provide one-year free warranty and comprehensive maintenance. (This depends on mutual agreement between parties)

e.   Developer shall submit a detailed training schedule for training of Customer staff and/ authorized representative in advance.

f.   Developer shall provide all Manuals and do and dont documents related to Software Product to Customer.

g.   Developer shall ensure that the Software Product shall be in conformity with the user Manuals prescribed for the Software Product.  

h.   Developer shall if required by Customer, enter into an agreement with escrow agent for the deposit of the source code of the Software Product with the escrow agent located in _______ (Specify the place such as Mumbai/ Bangalore).  The terms of that agreement will be substantially the same as the standard terms issued by such escrow agent. Developer shall then immediately notify escrow agent that Customer is to have the benefit of that agreement and be a licensee under it.  Customer shall pay any costs associated with the establishment of the escrow and Customer shall pay any renewal costs which occur under the escrow.

i.   Developer shall keep at the Site, the modules of auditing and testing software and train the Customer Staff in the use of the modules.

j.   Developer shall provide the requisite support for creation and generation of additional reports as may be required for statutory and other purposes.

k.   For monitoring the proper functioning of the Software Product that is agreed to be developed by Developer for Customer, the former shall depute a qualified and well-trained resident-engineer to be available at the Site always for an initial period of _____ month/months from the date of the installation of the Software Product, to attend to any kind of rectification or defect or mal-functioning of the software that might be noticed during that period.


6. OWNERSHIP OF SOFTWARE PRODUCT
 
Ownership by Customer  
Developer assigns to Customer its entire right, title and interest in Software Product created or developed by Developer for Customer under this Agreement including all patents, copyrights, trade secrets and other proprietary rights upon full payments made by Customer to Developer.  Developer shall execute all the documents necessary to secure copyright, patent, or other intellectual property rights in the Software Product at no charge to client. However, Customer shall reimburse Developer for reasonable out-of-pocket expenses.  Customer grants to Developer a nonexclusive, license for the term of ______ years to use the Software Product.  

OR

Ownership by Developer with exclusive license to Customer
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in Software Product created or developed by Developer for Customer under this Agreement. Developer grants Customer a nontransferable license to use the Software Product. The license is conditioned upon full payment of the compensation due Developer under this Agreement.  The license shall be exclusive in __________ (Specify place/territory) for a period of _____ months/year following acceptance by Customer of the Software Product as set forth in this Agreement. The license shall automatically revert to a perpetual nonexclusive license following the period of exclusivity.  The license shall authorize Customer to:  
   Install the Software Product on computer systems owned, leased or otherwise controlled by Customer;
   Utilize the Software Product for its internal data-processing purposes (but not for time-sharing or service bureau purposes) and
   Copy the Software Product only as necessary to exercise the rights granted in this Agreement

OR

Ownership by Developer with non-exclusive license to Customer 
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in Software Product created or developed by Developer for Customer under this Agreement subject to payment of all compensation due under this Agreement , Developer grants Customer a nonexclusive, nontransferable, royalty-free license to use the Software Product.  The license shall authorize Customer to:  
   Install the Software Product on computer systems owned, leased or otherwise controlled by Customer.
   Utilize the Software Product for its internal data-processing purposes (but not for time-sharing or service bureau purposes), and  
   Copy the Software Product only as necessary to exercise the rights granted in this Agreement.  
OR

Joint ownership  
Developer hereby grants Customer an undivided one-half interest in the Software Product and associated documentation. The Software Product may be freely used by either party without accounting to the other party. Customer and Developer agree to execute all documents reasonably necessary to legally establish their joint ownership of the Software Product.    

7. OWNERSHIP OF BACKGROUND TECHNOLOGY  
Customer acknowledges that Developer owns or holds a license to use and sublicense various preexisting development tools, routines, subroutines and other programs, data and materials that Developer may include in the Software Product developed under this Agreement. This material shall be referred to as "Background Technology." Developer's Background Technology includes, but is not limited to those items identified in Exhibit C, which is part of this Agreement.  Developer retains all right, title and interest, including all copyright, patent rights and trade secret rights in the Background Technology. Subject to full payment of the consulting fees due under this Agreement, Developer grants Customer a nonexclusive, perpetual worldwide license to use the Background Technology in the Software Product developed for and delivered to Customer under this Agreement, and all updates and revisions thereto. However, Customer shall make no other commercial use of the Background Technology without Developer's written consent.

8. MARKETING & SALE OF LICENSES

Both the Parties agree that in case of sale of License for use of Software Product then Developer shall be entitled to the following revenue sharing percentage:
(Specify the sharing percentage as agreed between parties)

Provided that such revenue sharing percentage mentioned above shall be applicable to only first __ sales made by Customer or total sales made by Customer till ___day of______ whichever is earlier. The above payments shall become due from the date of such sale. In the event Customer fails to make the aforesaid payments within a period of __ days from the date of occurrence of the aforesaid sale, Developer shall be entitled to the aforesaid payments along with interest thereon at the rate of __% per annum from the date it is due to the date of repayment.  






9. TERM

This Agreement shall be valid till _____________ (Specify the date) unless terminated earlier as provided in clause 14 of this Agreement.  

MERGER / SALE OF BUSINESS:-

a)   Should Customer merge with other Company, all rights of Customer under this Agreement shall devolve to the transferee entity;
b)   Should Developer merge/sells its business, it should ensure continuation of uninterrupted services to Customer in regard to the on-line trading Software Product, failing which Customer will be entitled to be indemnified for the losses and damages arising thereof.


10. REPRESENTATIONS
   
Developer  represents and warrants that the Software Product delivered hereunder in terms of this Agreement do not or shall not infringe or conflict with any right of any third party and that no warranty, condition, undertaking or term, or otherwise, is given or to be implied as to the suitability of the Software Product for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to Developer and all such warranties, conditions, undertakings and terms are hereby nullified and excluded.

11. Confidentiality
   Each Party shall treat as confidential the Agreement  and all information obtained from the other pursuant to the Agreement  and shall not divulge such information to any person (except to such party's own employees and other persons and then only to those employees and persons who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Agreement , which is already in public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is obvious.  Each Party shall ensure that its employees are aware of and comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Agreement.
12. NON-COMPETITION

Developer shall not duplicate or otherwise reproduce, directly or indirectly, in whole or in part, the Software Product or any material relating thereto except as and for the use specified in the Agreement. Developer shall take all reasonable steps to ensure that all authorized personnel including its employees and agents having access to the Software Product shall refrain from disclosure, duplication or reproduction in any form.




13. LIMITATION OF LIABILITY 
   In no event shall Developer be liable to Customer for loss of profits of Customer, or special or consequential damages, even if Developer has been advised of the possibility of such damages.  
   Developer's total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Developer by Customer under this Agreement or Rs_________, whichever is greater.  
   Developer shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights, and then only as provided in the section of this Agreement entitled Intellectual Property Infringement Claims.  
   Customer shall indemnify Developer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the Software Product provided under this Agreement, other than for infringement of intellectual property rights. Developer shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such claim or suit.

14. INDEPENDENT CONTRACTOR
 
Developer is an independent contractor, and neither Developer nor Developer's employees is, or shall be deemed, Client's employees. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Neither developer nor Developers employees are entitled to any benefits which are available to employees of Customer.

15. NON-SOLICITATION OF DEVELOPER'S EMPLOYEES  
Customer shall not knowingly hire or solicit Developer's employees during performance of this Agreement and for a period of _____ months/years after termination of this Agreement without Developer's written consent.    
      
16. TERMINATION

16.1 Either Party has the right to terminate the Agreement by giving not less than 60 (sixty) days clear notice in writing to the other Party.

16.2 In case of material breach of any terms and conditions of this Agreement by any Party, this Agreement can be terminated by the other Party by giving 30 (thirty) days notice to the other party. The rights and obligations arising out of or in relation to this Agreement or payments due to be made or received by either Party prior to the termination of this Agreement shall continue to remain in force notwithstanding the termination of this Agreement.

16.3 If before the delivery of the Software Product if any Party cancels the Purchase Order then such Party shall be liable to pay 20% of the total consideration as mentioned in clause 3.3a)  of this Agreement to the other Party.

16.4 Developer shall on the termination of this Agreement due to material breach by Customer be entitled to take back the Software Products and/ Licenses and may at its option also forfeit the entire consideration paid by Customer.

16.5. The contract entered into herein shall be scrupulously adhered to and completed by Developer in letter and spirit and in the event of any failure in that regard the Developer hereby ensures that it will compensate Customer in damages quantified at ___ times the value of the contract.
 
16.6 Either Party would be entitled to terminate this Agreement within 60 days from the date of execution of this Agreement. Termination under this Clause shall not in any event be after the issuance of the acceptance certificate by Customer.

17. FORCE MAJEURE   

In the event that the performance of the obligations under this Agreement by either Party are prevented or hindered in consequence of any act of God or circumstances beyond the control of the Parties, then such performance or obligations shall wholly or partially be suspended during the period and no party shall be liable to other party during such period owing to such circumstances.

18. SEVERABILITY

The various provisions and sub provisions of this Agreement are severable and if any provision or sub provision or part thereof is held to be unenforceable by any court of competent jurisdiction, then such enforceability shall not affect the validity or enforceability of the remaining provisions or sub provisions or parts thereof in this Agreement.

19. ENTIRETY

This Agreement contains the Parties entire agreement relating to the subject matters provided for herein and supersedes any and all prior agreements or understandings. No amendment or addition to this Agreement shall be valid unless made in writing and signed by authorized representatives of each Party.

20. ASSIGNMENT

Neither Party may validly assign all or part of the rights and obligations arising under this Agreement, without the other Partys prior written consent.

21. AMENDMENT/ MODIFICATION
   
No modification or amendment to this Agreement and no waiver of any of the terms or conditions hereto shall be valid or binding unless made in writing and duly executed by the Parties.

22. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of India, irrespective of where the Software Product is used. All disputes and differences of opinion arising out of or in connection with this Agreement shall be referred to a panel of three arbitrators, with each Party appointing one arbitrator, and the arbitrators so appointed jointly nominating a third presiding arbitrator. The arbitration shall be in accordance with the provisions of the Indian Arbitration & Conciliation Act, 1996.  The place of arbitration shall be ______ (Specify the place), India. This Clause shall survive the termination of this Agreement.

23. ATTORNEY FEES  

If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses.    

24. NOTICES

Any notice required to be given hereunder shall be given by sending the same by registered mail, postage prepaid, return receipt requested and by telex or facsimile, to the address stated herein above, or to any subsequent address designated by either Party for the purpose of receiving notices pursuant to this Agreement. All notices shall be deemed to have been validly given on (i) the business date immediately after the date of transmission with confirmed answer back, if transmitted by facsimile/electronic transmission, or (ii) after  10 (ten) business days, if transmitted by courier or registered post.

25.   HEADINGS
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
26.   COUNTERPARTS
This Agreement may be signed in two counterparts, each of which shall be deemed an original and both of which shall together constitute one agreement.
IN WITNESS WHEREOF, PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATE FIRST ABOVE WRITTEN
      
FOR AND ON BEHALF OF                       FOR AND ON BEHALF OF
CUSTOMER                             SOFTWARE DEVELOPER



_________________                   ______________________
NAME                           NAME
DESIGNATION                     DESIGNATION                 

WITNESSED BY:



EXHIBIT-A
Specifications of Software


EXHIBIT-B
Payment Terms
EXHIBIT-C
Background technology
Number of Pages17
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#33487
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.












Custom Software Development Agreement
(India)










This Packet Includes:
   1. General Information
   2. General Instructions
   3. Custom Software Development Agreement






General Information
Custom Software Development Agreement
(India)

A Custom Software Development agreement is an agreement between a customer and software developer whereby the software developer will create software according to specifics provided by the customer.  

This type of agreement is important because it not only defines the rights and obligations of both parties to the contract, but it was also help the parties avoid and potential confusion which could result in length delays, additional expense and litigation.





General Instructions
 Custom Software Development Agreement
(India)

This kits sample custom software development agreement includes general provisions customarily included in such agreements. It is suitable to any size of software project.  

Purpose of this agreement

   This is an agreement between the customer and software developer for purpose of development of software. It defines the rights and obligations of both parties to the contract. It includes details of the development of software, maintenance, payment terms, training, ownership, confidentiality, warranties, intellectual property, governing law, etc. It will guide the relationship between software developer and a customer. It also helps to protect against service-related problems in the future.

To whom this agreement is useful?

   This agreement is used by: i) a software developer (company or individual) who develops software for clients (local or international); or ii) a company or individual who hires software developer for development of software.

Benefits of this agreement

   Suits any type of software development
   Covers all legal aspects
   Protects both contracting parties
   Written in simple user friendly English

Contents of the Agreement

   Parties to Agreement
   Recitals
   Definitions
   Scope of services
   Commercial terms and conditions for Software Product
    

Delivery
   Warranty
   Consideration and Payment
   Annual Maintenance Charges
   Taxes
   Other Expenses
    

User Acceptance Test (UAT)
   Responsibilities of Customer
   Responsibilities of Developer
   Ownership of Software Product
   Ownership of Background technology
   Marketing and Sales of Licenses
   Term
   Representations
   Confidentiality
   Non-Competition
   Limitation of liability
   Independent Contractor
   Non-solicitation of Developers employees
   Termination
   Force Majeure
   Severability
   Entirety
   Assignment
   Amendment
   Governing law and dispute resolution
   Attorney fees
   Notices
   Headings
   Counterparts






DISCLAIMER:

FindLegalForms, Inc. (“FLF”) is not a law firm and does not provide legal advice.  The use of these materials is not a substitute for legal advice. Only a lawyer/advocate/solicitor/barrister can provide legal advice.  A lawyer/solicitor/barrister should be consulted for all serious legal matters.  No Lawyer-Client / Solicitor-Client /Advocate-Client relationship is created by use of these materials.  
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Custom Software Development Agreement

This Agreement (Agreement”) is made on this _____of day of ___________ 2009.

BETWEEN

___________ (Name of the Customer) having its registered office at ____________ (Address of customer) (hereinafter referred to as, Customer which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns) of the First Part

AND
___________ (Name of the Software developer), a Company incorporated under the Companies Act, 1956 and having its registered office at ____________ (Address of Software developer) (hereinafter referred to as Developer, which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns) of the Other Part.
Customer and Developer are hereinafter collectively referred as “Partiesand individually as “Party”.
RECITALS
Customer is desirous of engaging Developer as an independent contractor to develop the computer software ___________________ (describe the type of software to be developed) as per specifications described in Exhibit-A, hereinafter for brevity sake be referred to as Software Product.

Developer desires to develop Software Product to Customer on the terms and conditions as set forth in the Agreement.

1. DEFINITIONS:

In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:

1.1   "Accepted"

Means, in relation to Software Product, that the Customer has issued an acceptance certificate following the passing of the Acceptance Tests relating thereto and "accept", “acceptance” has a corresponding meaning.

1.2   “Acceptance Date

Shall mean, in relation to the Software Product, the date in an acceptance certificate issued by Customer, certified by the Customer as the date when the Software Product are Accepted by Customer.


1.3   “Licenses

License to use the Software Product.

1.4   “Manuals

Operating and technical manuals to be supplied by Developer along with the Software.

1.5   “Purchase Order

Order placed by Customer for the Software Product and /Licenses.

1.6   “Services

Services to be provided by developer under this Agreement.

1.7   “Site

Customers office at _____________ and/or any other office designated by Customer.

1.8   "Software Product



(Briefly specify description of Software Product to be developed)




2. SCOPE OF THE SERVICES

Developer shall develop Software Product as per specifications in Exhibit-A, which shall be part of this agreement, within _____________ (Specify the date of completion of Software Product).

Developer grants the following Licenses to Customer:
License to use _________________________ (Specify the name of Software Product) hereinafter for brevity sake be referred to as Licenses”.


 2.1  SOFTWARE PRODUCT OVERVIEW

______________ (Name of Software Product) is a Software Product, which is for _______________________ (Specify purpose of software Product). 

The Software Product to be licensed by Developer shall comprise of following:
____________________________________________________________________________
_______________________________________________________ (list of Software Product)


3. Commercial Terms and Conditions for Software Product

Developer shall deliver the Software Product on the following terms and conditions herein mentioned below:

3.1 Delivery

The Software Product shall be delivered within __ days of receiving the Purchase Order with advance.

3.2 Warranty

THE SOFTWARE PRODUCT FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE PRODUCT.  

OR

Express Warranties:

Developer shall extend warranty support for a period of _____ months from date of installation without any cost. After the expiry of ___ months/ year from the Acceptance Date, Annual maintenance (Specify the period of maintenance as agreed between parties) charges shall be paid by Customer to Developer in advance.

The warranty support entitles Customer for the following:

a.   Telephonic consultation, assistance and advice with respect to technical queries.

b.   One man month of efforts for customization is included in warranty period. (Specify as agreed between parties)

c.   Corrections to errors reported in the current release of the program (s) as and when the same are made available by Customer.

d.   Warranty terms for Software Product are limited to replacement of defective Software Product and do not include re-installation. Any re-installation shall be charged separately at customization rates.

e.   Free software updates/patches to the Software Product as and when they become available during the support period. In case Customer introduces new functionality as optional, separately priced Product, the same shall not be included as free update.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.    


3.3 Consideration and Payment
a) The price for Software Product shall be Rs. ____________ plus taxes all payable in advance on the placing of Purchase Order. This agreed price is valid for period of one year from date of this Agreement and Customer needs to place the Purchase Order for the same before the said time period to avail the same. Software Product shall be delivered within ___ months from the date of Purchase Order.
b) The total consideration at which Developer shall deliver the Licenses is Rs ____________ plus taxes as applicable. Customer shall make payment to Developer in accordance with Exhibit-B of this Agreement.
d) Any customization shall be at a rate of Rs. _________ per month plus applicable taxes which shall be subject to revision by mutual agreement after a period of __ months/ years from the date of this Agreement.
e) Late payments by Customer shall be subject to late penalty fees of ____% per month from the due date until the amount is paid.  

3.4 Annual Maintenance Charges

After the expiry of ____ months/year from the Acceptance Date an annual maintenance charge shall be payable by Customer to Developer towards the maintenance of the Software Product. The charges of the same shall be ____% of the total consideration and shall be payable in advance.

3.5 Taxes

The total consideration as stated above in clause 3.3 is excluding any taxes and duties. For the Software Product and/ Licenses VAT of 4% shall be applicable and for customization and facility management 12.36% service tax shall be applicable.

3.6 Other Expenses

Any communication, travel, boarding and lodging charges if any incurred by developer for providing the services under this Agreement shall be billable to Customer. Customer shall be liable to make payment only against submission of invoices.


3.7 User Acceptance Test (UAT)

The Acceptance Tests shall be carried out by Customer as per the acceptance test document agreed between Developer and Customer. The Acceptance Test shall be completed by Customer within __ weeks from the date indicated by Developer.  Customer shall issue an acceptance certificate stating that the Software Product has been accepted by Customer and the Acceptance Date.  In case of non-completion by Customer, the Software Product shall be deemed to be accepted on the expiry of ___ weeks from the date of its installation.



4. RESPONSIBILITIES OF CUSTOMER

a.   Employ one suitably qualified person to co-ordinate the activities relating to the implementation of the Software Product and to manage day to day technical administration / operations.

b.   Procure and install the necessary hardware, licensed system software, networking equipment, etc.

c.   Provide facilities for conducting training at the server location.

d.   To obtain necessary regulatory clearances/approvals for the operation of the Software Product purchased.


5. RESPONSIBILITIES OF DEVELOPER

a.   Developer shall take the complete responsibility for implementation of Software Product.

b.   Developer shall provide minimum support for a period of _____ months/years from the date of this Agreement subject to the commercial terms and conditions as mentioned in this Agreement.

c.   Developer shall deploy the required team of engineers to see that project for the implementation of the Software Product is executed in time.

d.   Developer shall provide one-year free warranty and comprehensive maintenance. (This depends on mutual agreement between parties)

e.   Developer shall submit a detailed training schedule for training of Customer staff and/ authorized representative in advance.

f.   Developer shall provide all Manuals and do and dont documents related to Software Product to Customer.

g.   Developer shall ensure that the Software Product shall be in conformity with the user Manuals prescribed for the Software Product.  

h.   Developer shall if required by Customer, enter into an agreement with escrow agent for the deposit of the source code of the Software Product with the escrow agent located in _______ (Specify the place such as Mumbai/ Bangalore).  The terms of that agreement will be substantially the same as the standard terms issued by such escrow agent. Developer shall then immediately notify escrow agent that Customer is to have the benefit of that agreement and be a licensee under it.  Customer shall pay any costs associated with the establishment of the escrow and Customer shall pay any renewal costs which occur under the escrow.

i.   Developer shall keep at the Site, the modules of auditing and testing software and train the Customer Staff in the use of the modules.

j.   Developer shall provide the requisite support for creation and generation of additional reports as may be required for statutory and other purposes.

k.   For monitoring the proper functioning of the Software Product that is agreed to be developed by Developer for Customer, the former shall depute a qualified and well-trained resident-engineer to be available at the Site always for an initial period of _____ month/months from the date of the installation of the Software Product, to attend to any kind of rectification or defect or mal-functioning of the software that might be noticed during that period.


6. OWNERSHIP OF SOFTWARE PRODUCT
 
Ownership by Customer  
Developer assigns to Customer its entire right, title and interest in Software Product created or developed by Developer for Customer under this Agreement including all patents, copyrights, trade secrets and other proprietary rights upon full payments made by Customer to Developer.  Developer shall execute all the documents necessary to secure copyright, patent, or other intellectual property rights in the Software Product at no charge to client. However, Customer shall reimburse Developer for reasonable out-of-pocket expenses.  Customer grants to Developer a nonexclusive, license for the term of ______ years to use the Software Product.  

OR

Ownership by Developer with exclusive license to Customer
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in Software Product created or developed by Developer for Customer under this Agreement. Developer grants Customer a nontransferable license to use the Software Product. The license is conditioned upon full payment of the compensation due Developer under this Agreement.  The license shall be exclusive in __________ (Specify place/territory) for a period of _____ months/year following acceptance by Customer of the Software Product as set forth in this Agreement. The license shall automatically revert to a perpetual nonexclusive license following the period of exclusivity.  The license shall authorize Customer to:  
   Install the Software Product on computer systems owned, leased or otherwise controlled by Customer;
   Utilize the Software Product for its internal data-processing purposes (but not for time-sharing or service bureau purposes) and
   Copy the Software Product only as necessary to exercise the rights granted in this Agreement

OR

Ownership by Developer with non-exclusive license to Customer 
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in Software Product created or developed by Developer for Customer under this Agreement subject to payment of all compensation due under this Agreement , Developer grants Customer a nonexclusive, nontransferable, royalty-free license to use the Software Product.  The license shall authorize Customer to:  
   Install the Software Product on computer systems owned, leased or otherwise controlled by Customer.
   Utilize the Software Product for its internal data-processing purposes (but not for time-sharing or service bureau purposes), and  
   Copy the Software Product only as necessary to exercise the rights granted in this Agreement.  
OR

Joint ownership  
Developer hereby grants Customer an undivided one-half interest in the Software Product and associated documentation. The Software Product may be freely used by either party without accounting to the other party. Customer and Developer agree to execute all documents reasonably necessary to legally establish their joint ownership of the Software Product.    

7. OWNERSHIP OF BACKGROUND TECHNOLOGY  
Customer acknowledges that Developer owns or holds a license to use and sublicense various preexisting development tools, routines, subroutines and other programs, data and materials that Developer may include in the Software Product developed under this Agreement. This material shall be referred to as "Background Technology." Developer's Background Technology includes, but is not limited to those items identified in Exhibit C, which is part of this Agreement.  Developer retains all right, title and interest, including all copyright, patent rights and trade secret rights in the Background Technology. Subject to full payment of the consulting fees due under this Agreement, Developer grants Customer a nonexclusive, perpetual worldwide license to use the Background Technology in the Software Product developed for and delivered to Customer under this Agreement, and all updates and revisions thereto. However, Customer shall make no other commercial use of the Background Technology without Developer's written consent.

8. MARKETING & SALE OF LICENSES

Both the Parties agree that in case of sale of License for use of Software Product then Developer shall be entitled to the following revenue sharing percentage:
(Specify the sharing percentage as agreed between parties)

Provided that such revenue sharing percentage mentioned above shall be applicable to only first __ sales made by Customer or total sales made by Customer till ___day of______ whichever is earlier. The above payments shall become due from the date of such sale. In the event Customer fails to make the aforesaid payments within a period of __ days from the date of occurrence of the aforesaid sale, Developer shall be entitled to the aforesaid payments along with interest thereon at the rate of __% per annum from the date it is due to the date of repayment.  






9. TERM

This Agreement shall be valid till _____________ (Specify the date) unless terminated earlier as provided in clause 14 of this Agreement.  

MERGER / SALE OF BUSINESS:-

a)   Should Customer merge with other Company, all rights of Customer under this Agreement shall devolve to the transferee entity;
b)   Should Developer merge/sells its business, it should ensure continuation of uninterrupted services to Customer in regard to the on-line trading Software Product, failing which Customer will be entitled to be indemnified for the losses and damages arising thereof.


10. REPRESENTATIONS
   
Developer  represents and warrants that the Software Product delivered hereunder in terms of this Agreement do not or shall not infringe or conflict with any right of any third party and that no warranty, condition, undertaking or term, or otherwise, is given or to be implied as to the suitability of the Software Product for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to Developer and all such warranties, conditions, undertakings and terms are hereby nullified and excluded.

11. Confidentiality
   Each Party shall treat as confidential the Agreement  and all information obtained from the other pursuant to the Agreement  and shall not divulge such information to any person (except to such party's own employees and other persons and then only to those employees and persons who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Agreement , which is already in public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is obvious.  Each Party shall ensure that its employees are aware of and comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Agreement.
12. NON-COMPETITION

Developer shall not duplicate or otherwise reproduce, directly or indirectly, in whole or in part, the Software Product or any material relating thereto except as and for the use specified in the Agreement. Developer shall take all reasonable steps to ensure that all authorized personnel including its employees and agents having access to the Software Product shall refrain from disclosure, duplication or reproduction in any form.




13. LIMITATION OF LIABILITY 
   In no event shall Developer be liable to Customer for loss of profits of Customer, or special or consequential damages, even if Developer has been advised of the possibility of such damages.  
   Developer's total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Developer by Customer under this Agreement or Rs_________, whichever is greater.  
   Developer shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights, and then only as provided in the section of this Agreement entitled Intellectual Property Infringement Claims.  
   Customer shall indemnify Developer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the Software Product provided under this Agreement, other than for infringement of intellectual property rights. Developer shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such claim or suit.

14. INDEPENDENT CONTRACTOR
 
Developer is an independent contractor, and neither Developer nor Developer's employees is, or shall be deemed, Client's employees. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Neither developer nor Developers employees are entitled to any benefits which are available to employees of Customer.

15. NON-SOLICITATION OF DEVELOPER'S EMPLOYEES  
Customer shall not knowingly hire or solicit Developer's employees during performance of this Agreement and for a period of _____ months/years after termination of this Agreement without Developer's written consent.    
      
16. TERMINATION

16.1 Either Party has the right to terminate the Agreement by giving not less than 60 (sixty) days clear notice in writing to the other Party.

16.2 In case of material breach of any terms and conditions of this Agreement by any Party, this Agreement can be terminated by the other Party by giving 30 (thirty) days notice to the other party. The rights and obligations arising out of or in relation to this Agreement or payments due to be made or received by either Party prior to the termination of this Agreement shall continue to remain in force notwithstanding the termination of this Agreement.

16.3 If before the delivery of the Software Product if any Party cancels the Purchase Order then such Party shall be liable to pay 20% of the total consideration as mentioned in clause 3.3a)  of this Agreement to the other Party.

16.4 Developer shall on the termination of this Agreement due to material breach by Customer be entitled to take back the Software Products and/ Licenses and may at its option also forfeit the entire consideration paid by Customer.

16.5. The contract entered into herein shall be scrupulously adhered to and completed by Developer in letter and spirit and in the event of any failure in that regard the Developer hereby ensures that it will compensate Customer in damages quantified at ___ times the value of the contract.
 
16.6 Either Party would be entitled to terminate this Agreement within 60 days from the date of execution of this Agreement. Termination under this Clause shall not in any event be after the issuance of the acceptance certificate by Customer.

17. FORCE MAJEURE   

In the event that the performance of the obligations under this Agreement by either Party are prevented or hindered in consequence of any act of God or circumstances beyond the control of the Parties, then such performance or obligations shall wholly or partially be suspended during the period and no party shall be liable to other party during such period owing to such circumstances.

18. SEVERABILITY

The various provisions and sub provisions of this Agreement are severable and if any provision or sub provision or part thereof is held to be unenforceable by any court of competent jurisdiction, then such enforceability shall not affect the validity or enforceability of the remaining provisions or sub provisions or parts thereof in this Agreement.

19. ENTIRETY

This Agreement contains the Parties entire agreement relating to the subject matters provided for herein and supersedes any and all prior agreements or understandings. No amendment or addition to this Agreement shall be valid unless made in writing and signed by authorized representatives of each Party.

20. ASSIGNMENT

Neither Party may validly assign all or part of the rights and obligations arising under this Agreement, without the other Partys prior written consent.

21. AMENDMENT/ MODIFICATION
   
No modification or amendment to this Agreement and no waiver of any of the terms or conditions hereto shall be valid or binding unless made in writing and duly executed by the Parties.

22. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of India, irrespective of where the Software Product is used. All disputes and differences of opinion arising out of or in connection with this Agreement shall be referred to a panel of three arbitrators, with each Party appointing one arbitrator, and the arbitrators so appointed jointly nominating a third presiding arbitrator. The arbitration shall be in accordance with the provisions of the Indian Arbitration & Conciliation Act, 1996.  The place of arbitration shall be ______ (Specify the place), India. This Clause shall survive the termination of this Agreement.

23. ATTORNEY FEES  

If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses.    

24. NOTICES

Any notice required to be given hereunder shall be given by sending the same by registered mail, postage prepaid, return receipt requested and by telex or facsimile, to the address stated herein above, or to any subsequent address designated by either Party for the purpose of receiving notices pursuant to this Agreement. All notices shall be deemed to have been validly given on (i) the business date immediately after the date of transmission with confirmed answer back, if transmitted by facsimile/electronic transmission, or (ii) after  10 (ten) business days, if transmitted by courier or registered post.

25.   HEADINGS
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
26.   COUNTERPARTS
This Agreement may be signed in two counterparts, each of which shall be deemed an original and both of which shall together constitute one agreement.
IN WITNESS WHEREOF, PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATE FIRST ABOVE WRITTEN
      
FOR AND ON BEHALF OF                       FOR AND ON BEHALF OF
CUSTOMER                             SOFTWARE DEVELOPER



_________________                   ______________________
NAME                           NAME
DESIGNATION                     DESIGNATION                 

WITNESSED BY:



EXHIBIT-A
Specifications of Software


EXHIBIT-B
Payment Terms
EXHIBIT-C
Background technology

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