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Updated ARTICLE 5-10 to be more pacific

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Jose Daniel G. Percy 2025-04-08 23:05:20 +08:00
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@ -123,67 +123,72 @@ C. Client desires to engage Developer to perform such software development and
## ARTICLE 5: TESTING AND ACCEPTANCE ## ARTICLE 5: TESTING AND ACCEPTANCE
5.1 **Testing:** Developer shall perform internal testing throughout the development process, including unit, integration, and functional testing, appropriate to the Agile methodology. 5.1 **Testing:** Developer shall perform internal testing throughout the development process, appropriate to the Agile methodology. This includes developer testing (e.g., unit tests where applicable), integration testing of components, and functional testing against requirements defined for each Sprint.
5.2 **User Acceptance Testing (UAT):** Client shall be responsible for conducting UAT upon notification from Developer that specific features, modules, or the System as a whole are ready for review. Client shall perform UAT in accordance with agreed-upon test plans or criteria. *(<!-- PLACEHOLDER: Define the UAT period duration and process for reporting issues -->)*. 5.2 **User Acceptance Testing (UAT):** Client shall be responsible for conducting UAT. Developer shall notify Client when specific features, modules, or System increments are ready for UAT (typically at the end of Sprints or designated UAT phases as shown in Exhibit C). Client shall perform UAT in accordance with mutually agreed-upon test plans or use cases based on the Acceptance Criteria. Client shall have **[Specify duration, e.g., ten (10) business days]** from such notification to conduct UAT for the provided increment and report any identified material defects or non-conformities ("**Defects**") to Developer in writing via the agreed project tracking tool ([Tool name from 2.2.c]). Failure to report Defects within the specified period may be deemed acceptance of that increment for the purpose of proceeding with development, without prejudice to addressing Defects identified later within the Warranty Period.
5.3 **Acceptance Criteria:** The System shall be deemed accepted by Client upon the earlier of: (a) Client providing written notice of acceptance; or (b) Client using the System in a live production environment for purposes other than UAT; or (c) the expiration of the final UAT period without Client providing written notice of material non-conformities preventing acceptance. *(<!-- PLACEHOLDER: Define specific, measurable Acceptance Criteria if possible, potentially in an Exhibit -->)*. 5.3 **Acceptance Criteria:** The System (or relevant increment) shall be deemed formally accepted by Client upon the earliest occurrence of:
> (a) Client providing Developer with written notice of acceptance; or
>
> (b) Client using the delivered System or increment in a live production environment for its intended operational purposes (excluding UAT activities); or
>
> (c) The expiration of the final UAT period for the complete System (as per the timeline in Exhibit C) without Client providing written notice of material Defects that prevent acceptance according to the agreed Acceptance Criteria.
>
> Acceptance Criteria shall primarily be based on the functional requirements defined in the project backlog and specifications developed during the Sprints, demonstrating that the System operates substantially as intended.
5.4 **Defect Resolution:** Developer shall use commercially reasonable efforts to correct any material defects or non-conformities to the agreed specifications identified during UAT and reported by Client in accordance with the agreed process. 5.4 **Defect Resolution:** Developer shall use commercially reasonable efforts to correct any material Defects identified during UAT and properly reported by Client within the agreed timeframe. Defect prioritization and resolution timelines will be managed as part of the Agile backlog grooming and sprint planning process. Resolution of minor defects or cosmetic issues may be deferred to subsequent Sprints or the Warranty Period by mutual agreement.
## ARTICLE 6: CHANGE MANAGEMENT ## ARTICLE 6: CHANGE MANAGEMENT
6.1 **Change Request Process:** Recognizing the iterative nature of the Agile methodology, changes to the Scope of Services, requirements, or specifications may arise. All requests for changes ("**Change Requests**") must be submitted in writing. 6.1 **Change Request Process:** Both Parties acknowledge that requirements may evolve. Any proposed change to the agreed-upon Scope of Services, features, specifications, or Deliverables after the initial baseline established during planning ("**Change Request**") must be submitted in writing by either Party to the other Party's designated project contact.
6.2 **Impact Assessment:** Developer shall assess the impact of each Change Request on the project scope, timeline, and cost. Developer will provide Client with a written analysis of the impact and any associated cost adjustments or schedule modifications. 6.2 **Impact Assessment:** Upon receipt of a Change Request, Developer shall promptly assess its potential impact on the project scope, technical feasibility, estimated timeline, resource allocation, and overall project cost. Developer will provide Client with a written impact analysis, including any proposed adjustments to fees or schedule, within **[e.g., five (5) business days]**, or a longer period if mutually agreed for complex requests.
6.3 **Approval:** No Change Request shall be implemented by Developer unless and until both Parties have mutually agreed upon the change, its impact, and any associated adjustments in writing (e.g., via a formal Change Order document). 6.3 **Approval:** Developer shall not proceed with implementing any Change Request until both Parties have formally agreed in writing (e.g., through a signed Change Order document referencing this Agreement) to the Change Request itself, its assessed impact, and any associated adjustments to the Agreement's terms, including fees and timeline. Approved Change Orders shall become part of this Agreement.
## ARTICLE 7: PROJECT CONSIDERATIONS AND RISK MITIGATION ## ARTICLE 7: PROJECT CONSIDERATIONS AND RISK MITIGATION
7.1 **Potential Scope Evolution:** Client acknowledges that the flexibility of the Agile process requires diligent scope management by both Parties to control project timelines and costs. The Change Management process (Article 6) is the agreed mechanism for managing scope adjustments. 7.1 **Potential Scope Evolution:** Client acknowledges that the flexibility inherent in the Agile process necessitates active participation and decisive feedback from Client representatives to manage scope effectively. Both Parties agree to utilize the Change Management process (Article 6) diligently to ensure that scope adjustments are intentional, documented, and their impacts understood and agreed upon, thereby mitigating risks to project timelines and budget.
7.2 **Initial Setup and Data Migration:** 7.2 **Initial Setup and Data Migration:**
> a. Client is responsible for necessary preparations for System implementation, including user account provisioning (unless otherwise agreed) and ensuring readiness of any required infrastructure not provided by Developer. > a. Client Responsibilities: Client is responsible for providing necessary access to its infrastructure (if applicable), timely feedback, subject matter expertise, and ensuring user readiness for the System implementation. Client shall designate key personnel to participate in project meetings, reviews, and UAT.
> >
> b. If data migration from existing systems is required and included in the Scope of Services *(<!-- PLACEHOLDER: Confirm if data migration is in scope -->)*, Client shall cooperate fully with Developer, providing data in the required format and participating in validation. Developer and Client will collaboratively develop a specific Data Migration Plan. The complexity of data migration may impact the project timeline and effort. > b. Data Migration: **[Select ONE option based on agreement, requires confirmation]:**
> * **Option 1 (Migration Not Included/Basic Assistance):** Data migration from Client's existing systems is not included in the scope of Services under the base Fees. Developer may provide reasonable assistance with defining data formats or validating imported data, subject to separate agreement or Change Order if significant effort is required. Client is primarily responsible for extracting, cleansing, formatting, and importing its data.
> * **Option 2 (Migration Included - Define Scope):** Data migration services for [Specify data types, e.g., user profiles, basic course structures] from [Specify source system(s)] are included in the Scope of Services. A detailed Data Migration Plan outlining responsibilities, formats, timelines, and validation procedures shall be developed collaboratively by the Parties early in the project. Client remains responsible for the accuracy and completeness of source data provided. Complexities discovered during migration may necessitate a Change Request.
> >
> c. Developer shall provide reasonable onboarding support, training (as per Section 4.4), and documentation to facilitate a smooth transition. > c. Support and Training: Developer commits to providing the onboarding support, training, and documentation outlined in Articles 2, 4, and associated Exhibits to mitigate challenges associated with system transition and user adoption.
## ARTICLE 8: FEES AND PAYMENT SCHEDULE ## ARTICLE 8: FEES AND PAYMENT SCHEDULE
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)* **8.1 Fees and Payment Terms:** **The total fees, billing rates (if applicable), invoicing procedures, and payment schedule for the Services rendered under this Agreement shall be detailed in a separate Payment Schedule document (designated as Exhibit D), which shall be mutually agreed upon by the Parties in writing and incorporated herein by reference upon execution.** Exhibit D shall specify currency (Philippine Peso - PHP, unless otherwise agreed), payment milestones or frequency, and payment terms (e.g., Net 30 days from invoice date).
8.1 **Fees:** Detail the total project cost or the billing rate (e.g., Time & Materials with a cap, Fixed Fee). Specify currency. 8.2 **Expenses:** Unless otherwise specified in Exhibit D, Developer shall bear its own general overhead costs. Any direct, out-of-pocket expenses reasonably incurred by Developer specifically for the project (e.g., pre-approved travel, specific third-party software licenses necessary for the deliverable) shall be reimbursable by Client only if pre-approved by Client in writing. Invoices for approved expenses shall include supporting documentation.
8.2 **Payment Schedule:** Outline milestones or dates for invoicing and payment terms (e.g., Net 30 days). Include details for initial deposit, milestone payments, final payment. 8.3 **Taxes:** Each Party shall be responsible for its own taxes imposed by relevant authorities. Fees specified in Exhibit D are exclusive of any applicable Value Added Tax (VAT) or other sales taxes, which, if applicable, shall be added to Developer's invoices and paid by Client.
8.3 **Expenses:** Specify how expenses (e.g., travel, third-party licenses) will be handled – included in fees or reimbursed separately. Require pre-approval for significant expenses.
8.4 **Taxes:** State which party is responsible for applicable taxes.
## ARTICLE 9: INTELLECTUAL PROPERTY RIGHTS ## ARTICLE 9: INTELLECTUAL PROPERTY RIGHTS
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)* 9.1 **Ownership of Custom Developed System:** Subject to Client's full payment of all fees due under this Agreement and Developer's reservation of rights in Pre-Existing IP (Section 9.2), Developer hereby assigns to Client all right, title, and interest in and to the custom Source Code and associated Deliverables specifically created by Developer for Client under this Agreement (the "**Custom Developed IP**").
9.1 **Ownership of Deliverables:** Typically, upon full payment, ownership of the custom code developed specifically for the Client (the System) transfers to the Client. Clearly define this. 9.2 **Developer's Pre-Existing Intellectual Property:** Developer shall retain all right, title, and interest in and to any software, code, libraries, tools, methodologies, know-how, or other intellectual property owned or licensed by Developer prior to the Effective Date or developed independently of this Agreement ("**Developer Pre-Existing IP**"), even if incorporated into the System or used in performing the Services.
9.2 **Developer's Pre-Existing IP:** State that Developer retains ownership of its pre-existing tools, libraries, frameworks, know-how, and code used in the project but grants Client a license to use them as integrated into the System. Define the scope of this license (e.g., perpetual, non-exclusive, royalty-free). 9.3 **License to Developer Pre-Existing IP:** To the extent Developer Pre-Existing IP is incorporated into the System Deliverables, Developer hereby grants Client a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to use, reproduce, modify, and create derivative works of such Developer Pre-Existing IP solely as necessary for Client to use, operate, maintain, and enhance the System for its internal educational and administrative purposes. This license is non-transferable except to a successor of Client's entire business related to the System.
9.3 **Third-Party Materials:** Address ownership and licensing of any third-party components (e.g., open-source libraries) used. Client typically receives these under their respective licenses. 9.4 **Third-Party Materials:** Any third-party software or materials, including open-source software components, incorporated into the System shall be subject to the terms and conditions of their respective licenses. Developer shall identify any significant third-party components and their licenses to Client upon request or as part of the documentation Deliverable. Client's use of the System is subject to compliance with such third-party licenses.
## ARTICLE 10: CONFIDENTIALITY ## ARTICLE 10: CONFIDENTIALITY
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)* 10.1 **Definition:** "**Confidential Information**" means any non-public information disclosed by one Party ("**Disclosing Party**") to the other Party ("**Receiving Party**") under this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. This includes, but is not limited to, business plans, financial information, customer lists, personnel information, technical data, trade secrets, know-how, source code (for Developer's pre-existing IP), and the terms of this Agreement.
10.1 **Definition of Confidential Information:** Define what constitutes confidential information for both Parties. 10.2 **Obligations:** The Receiving Party agrees to: (a) use the Confidential Information solely for the purpose of performing its obligations or exercising its rights under this Agreement; (b) not disclose the Confidential Information to any third party without the prior written consent of the Disclosing Party, except to its employees, contractors, or legal/financial advisors who have a need to know and are bound by confidentiality obligations at least as restrictive as those herein; and (c) protect the Confidential Information from unauthorized use or disclosure using at least the same degree of care that it uses to protect its own confidential information of like importance, but not less than a reasonable degree of care.
10.2 **Obligations:** State the receiving Party's obligation to protect the disclosing Party's confidential information, using a reasonable degree of care. 10.3 **Exclusions:** The obligations under this Article shall not apply to information that the Receiving Party can demonstrate: (a) was already lawfully known to the Receiving Party at the time of disclosure, free of any obligation of confidentiality; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is rightfully received from a third party without restriction and without breach of this Agreement; or (d) was independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information.
10.3 **Exclusions:** List standard exclusions (e.g., publicly known information, independently developed, required by law). 10.4 **Required Disclosure:** If the Receiving Party is compelled by law, regulation, or court order to disclose any Confidential Information, it shall provide the Disclosing Party with prompt prior written notice (to the extent legally permissible) to allow the Disclosing Party an opportunity to seek a protective order or other appropriate remedy.
10.4 **Duration:** Specify the duration of the confidentiality obligations (e.g., a number of years after agreement termination). 10.5 **Duration:** The confidentiality obligations set forth herein shall survive the termination or expiration of this Agreement for a period of **[e.g., five (5)]** years. Obligations related to trade secrets shall survive indefinitely as long as they remain trade secrets under applicable law.
## ARTICLE 11: WARRANTIES AND DISCLAIMERS ## ARTICLE 11: WARRANTIES AND DISCLAIMERS