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Update ARTICLE 11-15 to be more PACIFIC

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Jose Daniel G. Percy 2025-04-08 23:07:23 +08:00
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@ -192,59 +192,66 @@ C. Client desires to engage Developer to perform such software development and
## ARTICLE 11: WARRANTIES AND DISCLAIMERS
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)*
11.1 **Developer Warranties:**
> a. **Performance Warranty:** Developer typically warrants that the System will perform substantially in accordance with the agreed specifications for a limited period (e.g., 90 days) after Acceptance ("Warranty Period"). Detail the remedy (e.g., Developer will correct defects).
11.1 **Developer Warranties:** Developer warrants to Client that:
> a. **Performance Warranty:** For a period of **[Specify duration, e.g., ninety (90) days]** following the date of final Acceptance of the complete System by Client ("**Warranty Period**"), the System will perform substantially in accordance with the material functional specifications agreed upon by the Parties under this Agreement when operated in the intended environment. Client's sole and exclusive remedy, and Developer's entire liability, for breach of this warranty shall be for Developer to use commercially reasonable efforts to correct or provide a workaround for any reproducible, material non-conformity reported by Client in writing during the Warranty Period. This warranty does not cover defects arising from misuse, modification by Client or third parties not authorized by Developer, accidents, or failure to operate the System in accordance with documentation or specified requirements.
>
> b. **Authority:** Warrant that Developer has the right and authority to enter into this Agreement.
> b. **Authority:** Developer has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder.
>
> c. **Non-Infringement:** Warrant that, to Developer's knowledge, the custom-developed portions of the System do not infringe on third-party IP rights. *(Often subject to limitations)*.
> c. **Service Performance:** The Services will be performed in a professional and workmanlike manner, consistent with generally accepted industry standards.
>
> d. **Non-Infringement:** To Developer's knowledge, the Custom Developed IP delivered under this Agreement does not infringe upon any valid patent, copyright, or trade secret of any third party existing under the laws of the Republic of the Philippines as of the Effective Date. Developer makes no warranty regarding infringement related to Developer Pre-Existing IP or any third-party materials.
11.2 **Disclaimers:** **EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, DEVELOPER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.** State that the System is provided "AS IS" after the Warranty Period.
11.2 **Disclaimers:** **EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, THE SYSTEM, SERVICES, AND DELIVERABLES ARE PROVIDED "AS IS." DEVELOPER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SYSTEM AS A WHOLE OR ANY THIRD-PARTY COMPONENTS. DEVELOPER DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR-FREE, UNINTERRUPTED, OR MEET ALL OF CLIENT'S REQUIREMENTS.**
## ARTICLE 12: LIMITATION OF LIABILITY
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)*
12.1 **Exclusion of Indirect Damages:** **IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SYSTEM OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.**
12.1 **Exclusion of Certain Damages:** **NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.**
12.2 **Cap on Direct Damages:** **EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (ARTICLE 10), INDEMNIFICATION OBLIGATIONS (IF ANY - NOT CURRENTLY INCLUDED, CONSIDER ADDING), OR INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO DEVELOPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.** *(Note: This cap is often heavily negotiated. Alternatives include a fixed amount or excluding certain types of direct damages).*
12.2 **Cap on Direct Damages:** **EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO DEVELOPER UNDER THIS AGREEMENT.** *(This amount is often heavily negotiated)*.
12.3 **Exceptions:** Specify exceptions to limitations (e.g., breach of confidentiality, indemnification obligations, infringement).
12.3 **Basis of Bargain:** The Parties acknowledge that the limitations of liability and disclaimers of warranties set forth in this Agreement reflect the agreed-upon allocation of risk between the Parties and form an essential basis of the bargain, without which Developer would not have entered into this Agreement on the terms provided.
## ARTICLE 13: TERM AND TERMINATION
*(<!-- PLACEHOLDER: THIS IS A CRITICAL SECTION -->)*
13.1 **Term:** This Agreement shall commence on the Effective Date and shall continue until all Services are completed, the System is Accepted, final payment has been made, and the Warranty Period has expired, unless terminated earlier pursuant to the terms of this Article 13. The initial intended development and deployment term is estimated in Exhibit C. The overall Agreement duration might extend based on mutually agreed support terms beyond the initial delivery (as suggested by the "3-5 Year Term" note, which requires separate definition, likely in a Support Agreement).
13.1 **Term:** The Agreement commences on the Effective Date and continues until the Services are completed and final payment is made, unless terminated earlier as provided herein.
13.2 **Termination for Cause:** Either Party may terminate this Agreement upon written notice if the other Party materially breaches any provision of this Agreement and fails to cure such breach within **[Specify cure period, e.g., thirty (30) calendar days]** after receiving written notice specifying the breach in reasonable detail. Material breaches include, but are not limited to, failure to make timely payments (by Client) or failure to meet key milestones or Deliverable requirements after reasonable opportunity to cure (by Developer).
13.2 **Termination for Cause:** Either Party may terminate if the other Party materially breaches the Agreement and fails to cure within a specified period (e.g., 30 days) after written notice.
13.3 **Termination for Convenience:** **[Choose ONE option or delete if not applicable]:**
* **Option A (Client Only):** Client may terminate this Agreement without cause at any time upon **[Specify notice period, e.g., thirty (30) days']** prior written notice to Developer.
* **Option B (Mutual):** Either Party may terminate this Agreement without cause at any time upon **[Specify notice period, e.g., sixty (60) days']** prior written notice to the other Party.
* **Option C (No Convenience Termination):** (No clause added).
13.3 **Termination for Convenience:** *(Optional)* Allow either Party (or just Client) to terminate without cause upon written notice (e.g., 30 or 60 days). Specify consequences (e.g., payment for work performed).
13.4 **Effect of Termination:** Detail obligations upon termination (e.g., return of confidential information, final payments for work done, delivery of work-in-progress).
13.4 **Effect of Termination:** Upon termination or expiration of this Agreement for any reason:
> a. Developer shall cease performing Services and shall promptly deliver to Client all completed Deliverables and work-in-progress, including Source Code for Custom Developed IP up to the date of termination.
>
> b. Client shall pay Developer for all Services performed and accepted Deliverables provided up to the effective date of termination, plus any pre-approved, non-cancelable expenses incurred. If termination is by Client for convenience (if Option A or B is chosen), Client shall also pay **[Specify additional amount, e.g., "a termination fee equivalent to X% of the remaining estimated project fees" or "for the work completed during the notice period"]**.
>
> c. Each Party shall promptly return or, at the Disclosing Party's request, destroy all Confidential Information of the other Party in its possession or control.
>
> d. Any provisions of this Agreement that by their nature should survive termination (including, but not limited to, Articles 9, 10, 11.2, 12, 14, and payment obligations accrued prior to termination) shall survive.
## ARTICLE 14: MISCELLANEOUS
14.1 **Governing Law:** Specify the jurisdiction whose laws will govern the Agreement (e.g., "State of [Your Jurisdiction], without regard to its conflict of laws principles").
14.1 **Governing Law:** This Agreement and any disputes arising out of or relating to it shall be governed by and construed in accordance with the laws of the **Republic of the Philippines**, without regard to its conflict of laws principles.
14.2 **Dispute Resolution:** Outline the process for resolving disputes (e.g., negotiation, mediation, arbitration, litigation) and specify the venue/location.
14.2 **Dispute Resolution:** The Parties agree to attempt to resolve any dispute, controversy, or claim arising out of or relating to this Agreement amicably through good faith negotiation between authorized representatives. If negotiation fails within **[e.g., thirty (30) days]**, the Parties agree **[Choose ONE: e.g., "to submit the dispute to mediation under the rules of [Specify Mediation Body in the Philippines] before resorting to litigation" OR "that the exclusive venue for any legal action shall be the competent courts of [Specify City, e.g., Iloilo City], Philippines"]**.
14.3 **Notices:** Define how formal notices must be sent between the Parties (e.g., certified mail, email with confirmation).
14.3 **Notices:** All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery; (b) upon transmission by electronic mail to the addresses specified below (provided confirmation of receipt is obtained); or (c) three (3) business days after deposit with a reputable overnight courier or registered mail, postage prepaid, addressed to the Parties at their respective addresses first set forth above, or to such other address as a Party may designate by notice.
> **To Developer:** Attn: [Name/Title], Email: [Email Address]
> **To Client:** Attn: [Name/Title], Email: [Email Address]
14.4 **Entire Agreement:** State that this Agreement (including Exhibits) constitutes the entire understanding between the Parties and supersedes all prior discussions or agreements.
14.4 **Entire Agreement:** This Agreement, including all Exhibits attached hereto (which are incorporated herein by reference), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and agreements, whether written or oral, relating thereto.
14.5 **Amendments:** Specify that any changes must be in writing and signed by both Parties.
14.5 **Amendments:** No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized representatives of both Parties.
14.6 **Assignment:** State whether either Party can assign its rights or obligations under the Agreement (usually requires consent).
14.6 **Assignment:** Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets related to this Agreement, provided the assignee agrees in writing to be bound by the terms hereof.
14.7 **Severability:** If any part of the Agreement is found invalid, the rest remains in effect.
14.7 **Severability:** If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable.
14.8 **Force Majeure:** Address delays caused by events beyond reasonable control.
14.8 **Force Majeure:** Neither Party shall be liable for any failure or delay in performing its obligations hereunder (except for payment obligations) if such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, labor disputes, pandemics, epidemics, government orders, fire, flood, earthquake, or internet service provider failures ("**Force Majeure Event**"). The affected Party shall provide prompt notice to the other Party and shall use reasonable efforts to resume performance as soon as practicable. If a Force Majeure Event continues for more than **[e.g., sixty (60) days]**, the non-affected Party may terminate this Agreement upon written notice.
14.9 **Relationship of Parties:** State that Developer is an independent contractor, not an employee or partner of Client.
14.9 **Relationship of Parties:** Developer is an independent contractor, and nothing in this Agreement shall be construed as creating an employment, partnership, joint venture, or agency relationship between Developer and Client. Neither Party has the authority to bind the other Party in any respect.
## ARTICLE 15: EXHIBITS
@ -253,22 +260,27 @@ The following Exhibits are attached hereto and incorporated by reference into th
* **Exhibit A:** User Interface Flow Diagram
* **Exhibit B:** Backend Architecture Diagram
* **Exhibit C:** Project Timeline Gantt Chart
* *(<!-- PLACEHOLDER: List any other Exhibits, e.g., Detailed Specifications, Payment Schedule, Acceptance Criteria Document -->)*
* **Exhibit D:** Payment Schedule *(To be mutually agreed upon and attached)*
**IN WITNESS WHEREOF,** the Parties hereto have caused this Software Development and Implementation Agreement to be executed by their duly authorized representatives as of the Effective Date.
**[CLIENT COMPANY: Western Institute of Technology]**
**[CLIENT: Western Institute of Technology]**
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: Mark Glen C. Guides
Date: 08/04/2025
Title: [Client Representative Title]
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**[CELL TECH]** (Developer)
**[DEVELOPER: Cell Tech]**
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: Jose Daniel G. Percy
Title: [Partner / Authorized Representative]
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: Rekcel M. Endencia
Date: 08/04/2025
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
---