Enterprise Software as a Service Agreement - South Dakota

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ENTERPRISE SOFTWARE AS A SERVICE AGREEMENT

STATE OF SOUTH DAKOTA

AGREEMENT INFORMATION

Field	Information
Agreement Date	[__/__/____]
Agreement Number	[________________________________]
Effective Date	[__/__/____]

PARTIES TO THIS AGREEMENT

PROVIDER:

Field	Information
Legal Entity Name	[________________________________]
State of Formation	[________________________________]
Principal Address	[________________________________]
City, State, ZIP	[________________________________]
Federal Tax ID (EIN)	[________________________________]
Primary Contact Name	[________________________________]
Contact Email	[________________________________]
Contact Phone	[________________________________]

CUSTOMER:

Field	Information
Legal Entity Name	[________________________________]
State of Formation	[________________________________]
Principal Address	[________________________________]
City, State, ZIP	[________________________________]
Federal Tax ID (EIN)	[________________________________]
Primary Contact Name	[________________________________]
Contact Email	[________________________________]
Contact Phone	[________________________________]

RECITALS

WHEREAS, Provider is engaged in the business of providing cloud-based software as a service solutions and related professional services;

WHEREAS, Customer desires to obtain access to and use of Provider's software platform and services for Customer's enterprise business operations;

WHEREAS, the parties wish to establish the terms and conditions under which Provider will make its services available to Customer;

WHEREAS, the parties intend that this Agreement comply with all applicable South Dakota laws, including the data breach notification requirements of SDCL §§ 22-40-19 to 22-40-26 and the Uniform Trade Secrets Act (SDCL Ch. 37-29);

WHEREAS, the parties acknowledge South Dakota's strong freedom of contract principles, absence of state income tax, absence of comprehensive data privacy legislation, and the absence of usury limits on written agreements between businesses;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1: DEFINITIONS

1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest.

1.2 "Authorized Users" means Customer's employees, contractors, consultants, and agents who are authorized by Customer to access and use the Services under the rights granted pursuant to this Agreement.

1.3 "Confidential Information" means all non-public information disclosed by one party to the other, whether orally, in writing, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure.

1.4 "Customer Data" means all electronic data, information, content, records, and files that Customer or Authorized Users upload, submit, store, transmit, or process through the Services.

1.5 "Documentation" means Provider's standard user guides, online help files, technical specifications, and other documentation related to the Services as updated from time to time.

1.6 "Downtime" means any period during which the Services are unavailable or materially impaired, excluding Scheduled Maintenance and Excused Downtime.

1.7 "Effective Date" means the date first written above or the date both parties have executed this Agreement, whichever is later.

1.8 "Excused Downtime" means unavailability caused by: (a) Customer's acts or omissions; (b) failures of Customer's equipment, software, or network connections; (c) third-party services outside Provider's control; (d) force majeure events; or (e) suspension pursuant to Section 6.4.

1.9 "Fees" means all amounts payable by Customer to Provider as set forth in this Agreement and any applicable Order Form.

1.10 "Information Holder" means any person or business that conducts business in the state and that owns or licenses computerized data that includes personal or protected information, as defined in SDCL § 22-40-19.

1.11 "Initial Term" means the initial subscription period specified in the Order Form.

1.12 "Intellectual Property Rights" means all patents, copyrights, trademarks, trade secrets, and other intellectual property rights recognized under the laws of any jurisdiction worldwide.

1.13 "Malicious Code" means viruses, worms, Trojan horses, ransomware, spyware, adware, or other harmful or malicious code, files, scripts, agents, or programs.

1.14 "Monthly Uptime Percentage" means the total minutes in a calendar month minus minutes of Downtime, divided by total minutes in the month, expressed as a percentage.

1.15 "Order Form" means an ordering document specifying the Services, subscription levels, Fees, and other commercial terms, executed by both parties and incorporated herein.

1.16 "Personal Information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when the name or the data elements are not encrypted: Social Security number, driver's license number or state identification card number, or account number or credit card number or debit card number in combination with any required security code, access code, or password that would permit access to an individual's financial account, as defined in SDCL § 22-40-19.

1.17 "Professional Services" means implementation, configuration, customization, training, integration, and consulting services provided by Provider as specified in an Order Form or Statement of Work.

1.18 "Protected Information" means a person's health information, an employee identification number in combination with any required security code, access code, or password, or biometric data, as defined in SDCL § 22-40-19.

1.19 "Renewal Term" means each successive subscription period following the Initial Term.

1.20 "Scheduled Maintenance" means planned maintenance of the Services performed during designated maintenance windows with advance notice to Customer.

1.21 "Security Breach" means the unauthorized acquisition of unencrypted computerized data or encrypted computerized data and the encryption key by any person that materially compromises the security, confidentiality, or integrity of Personal Information or Protected Information, as defined in SDCL § 22-40-20.

1.22 "Services" means Provider's proprietary cloud-based software platform and related services described in the applicable Order Form, including all updates, enhancements, and new features made generally available.

1.23 "Service Level Agreement" or "SLA" means the service level commitments set forth in Article 4.

1.24 "Statement of Work" or "SOW" means a document describing Professional Services, deliverables, timelines, and associated fees.

1.25 "Subscription Term" means collectively the Initial Term and all Renewal Terms.

1.26 "Third-Party Components" means software, data, services, or content provided by third parties that are incorporated into or used in connection with the Services.

1.27 "Trade Secret" has the meaning set forth in SDCL § 37-29-1(4), including information that derives independent economic value from not being generally known and is the subject of reasonable efforts to maintain its secrecy.

1.28 "User Account" means the unique login credentials and account established for each Authorized User.

1.29 "Written Agreement" means a written contract between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities, which under SDCL § 54-3-1.1 may establish any interest rate or charge without a maximum rate limitation.

1.30 "Breach of System Security" has the meaning set forth in SDCL § 22-40-20, including the unauthorized acquisition of unencrypted or encrypted (with key) computerized data that materially compromises the security, confidentiality, or integrity of personal or protected information.

ARTICLE 2: SUBSCRIPTION AND ACCESS RIGHTS

2.1 Grant of Rights

Subject to Customer's compliance with this Agreement and payment of all Fees, Provider hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to:

(a) Access and use the Services for Customer's internal business operations;

(b) Permit Authorized Users to access and use the Services in accordance with this Agreement;

(d) Store, process, and retrieve Customer Data through the Services.

2.2 Subscription Tiers

Customer's subscription shall be as specified in the Order Form:

☐ Standard Enterprise - Up to [____] Authorized Users
☐ Professional Enterprise - Up to [____] Authorized Users
☐ Premium Enterprise - Up to [____] Authorized Users
☐ Unlimited Enterprise - Unlimited Authorized Users
☐ Custom Configuration - As specified: [________________________________]

2.3 User Account Administration

(a) Customer shall designate at least one (1) administrator to manage User Accounts and access permissions.

(b) Customer is responsible for maintaining the confidentiality of all User Account credentials.

(d) User Accounts are for designated individuals only and may not be shared among multiple persons.

2.4 Authorized User Categories

☐ Named Users - Identified individuals assigned specific User Accounts
☐ Concurrent Users - Maximum simultaneous users: [____]
☐ Site License - All employees at specified locations
☐ Enterprise-Wide - All employees and authorized contractors
☐ Other: [________________________________]

2.5 Affiliate Usage

☐ Customer's Affiliates are authorized to use the Services under this Agreement
☐ Customer's Affiliates must execute separate Order Forms
☐ Affiliate usage is not permitted

If Affiliate usage is permitted:

(a) Customer shall ensure Affiliate compliance with all Agreement terms;

(b) Customer remains liable for Affiliate acts and omissions;

ARTICLE 3: PROFESSIONAL SERVICES AND SUPPORT

3.1 Implementation Services

Provider shall provide the following implementation services:

☐ Standard Implementation

System configuration and setup
Data migration assistance (up to [____] GB)
Basic integration configuration
Administrator training (up to [____] hours)
Go-live support

☐ Premium Implementation

All Standard Implementation services
Custom workflow configuration
Advanced integration development
Extended training program (up to [____] hours)
Dedicated implementation manager
Post-go-live optimization review

☐ Custom Implementation - Per attached Statement of Work

Implementation Timeline: [________________________________]

3.2 Support Tiers

Customer's support tier:

☐ Standard Support

Business hours support: Monday-Friday, 8:00 AM - 6:00 PM Central Time
Email and ticket-based support
Response time targets per Section 3.3
Access to online knowledge base
Quarterly system health checks

☐ Premium Support

Extended hours support: Monday-Friday, 7:00 AM - 9:00 PM Central Time
Saturday support: 9:00 AM - 5:00 PM Central Time
Email, ticket, and phone support
Enhanced response time targets
Designated support representative
Monthly system health checks
Priority escalation path

☐ Enterprise Support

24/7/365 support coverage
Dedicated support team
Direct phone line access
Fastest response time guarantees
Named Technical Account Manager
Weekly system health reviews
Quarterly business reviews
Priority feature request consideration

3.3 Response Time Targets

Severity Level	Description	Standard Support	Premium Support	Enterprise Support
Critical (S1)	Complete system outage; all users affected	4 hours	2 hours	30 minutes
High (S2)	Major functionality impaired; significant user impact	8 hours	4 hours	1 hour
Medium (S3)	Partial functionality affected; workaround available	24 hours	12 hours	4 hours
Low (S4)	Minor issues; questions; enhancement requests	72 hours	48 hours	24 hours

3.4 Severity Level Definitions

Critical (Severity 1): The Services are completely unavailable or a critical business function is totally inoperable with no workaround available, resulting in severe business impact.

High (Severity 2): A major feature is significantly degraded or unavailable, impacting a substantial number of users, with limited or difficult workaround.

Medium (Severity 3): A feature is not functioning as documented, but a reasonable workaround exists, or the issue affects a limited number of users.

Low (Severity 4): Minor issues, cosmetic defects, documentation questions, or feature enhancement requests with minimal business impact.

3.5 Support Exclusions

Provider support obligations do not extend to issues arising from:

(a) Customer's misuse of the Services or failure to follow Documentation;

(b) Modifications made by Customer without Provider's authorization;

(d) Customer's failure to implement recommended updates or fixes;

(e) Use of the Services in excess of licensed capacity or scope.

3.6 Training Services

☐ Provider shall provide the following training:

Training Type	Format	Duration	Participants
Administrator Training	[________________________________]	[____] hours	[____]
End User Training	[________________________________]	[____] hours	[____]
Advanced Feature Training	[________________________________]	[____] hours	[____]
Custom Training	[________________________________]	[____] hours	[____]

ARTICLE 4: SERVICE LEVEL AGREEMENT

4.1 Uptime Commitment

Provider commits to the following Monthly Uptime Percentage during each calendar month:

☐ 99.5% Monthly Uptime
☐ 99.9% Monthly Uptime
☐ 99.95% Monthly Uptime
☐ 99.99% Monthly Uptime
☐ Other: [____]%

4.2 Uptime Calculation

Monthly Uptime Percentage = ((Total Minutes in Month - Downtime Minutes) / Total Minutes in Month) x 100

Downtime is measured from when Provider confirms a system-wide outage or when automated monitoring detects unavailability, whichever is earlier.

4.3 Scheduled Maintenance Windows

(a) Standard Maintenance Window: [________________________________]

(b) Provider shall provide at least [____] hours advance notice for scheduled maintenance.

(d) Emergency maintenance may be performed without advance notice when necessary to address critical security issues or prevent imminent harm.

4.4 Service Credits

If Provider fails to meet the Monthly Uptime Percentage commitment, Customer shall be entitled to Service Credits as follows:

Monthly Uptime Percentage	Service Credit (% of Monthly Fee)
99.0% - Below Commitment	10%
98.0% - 98.99%	25%
95.0% - 97.99%	50%
Below 95.0%	100%

4.5 Service Credit Limitations

(a) Service Credits are Customer's sole and exclusive remedy for Provider's failure to meet the SLA.

(b) Service Credits shall not exceed 100% of the monthly Fees for the affected month.

(d) Customer must request Service Credits within thirty (30) days of the end of the affected month.

4.6 Performance Monitoring

(a) Provider shall maintain real-time monitoring of Services availability.

(b) Provider shall make uptime statistics available to Customer through [________________________________].

4.7 Chronic Failure

If Provider fails to meet the Monthly Uptime Percentage commitment for [____] consecutive months or [____] months in any twelve (12) month period, Customer may terminate this Agreement upon thirty (30) days written notice without penalty and receive a pro-rata refund of prepaid Fees.

ARTICLE 5: DATA HANDLING AND SECURITY

5.1 Customer Data Ownership

(a) As between the parties, Customer retains all right, title, and interest in and to Customer Data.

(b) Provider acquires no rights to Customer Data except the limited license to process Customer Data as necessary to provide the Services.

5.2 Data Processing

Provider shall:

(a) Process Customer Data only as necessary to provide the Services and as instructed by Customer;

(b) Not access, use, or disclose Customer Data except as required for Service delivery, security, or as compelled by law;

(d) Ensure personnel with access to Customer Data are bound by confidentiality obligations.

5.3 Data Location

☐ Customer Data shall be stored and processed within the United States
☐ Customer Data shall be stored and processed within: [________________________________]
☐ Customer Data may be stored and processed in any Provider data center location
☐ Customer Data location restrictions: [________________________________]

5.4 Information Security Program

Provider shall implement and maintain a comprehensive written information security program including:

(a) Risk Assessment: Regular identification and assessment of reasonably foreseeable internal and external threats to Customer Data security;

(b) Safeguards: Implementation of safeguards to control identified risks, including:

Encryption of Customer Data in transit and at rest using industry-standard protocols
Multi-factor authentication for administrative access
Network security controls including firewalls, intrusion detection, and prevention systems
Regular vulnerability scanning and penetration testing
Secure software development practices

(d) Employee Training: Regular security awareness training for all personnel with access to Customer Data;

(e) Incident Response: Written incident response plan addressing detection, containment, investigation, and notification procedures;

(f) Business Continuity: Disaster recovery and business continuity procedures.

5.5 Security Certifications and Audits

Provider maintains or shall obtain the following certifications:

☐ SOC 2 Type II
☐ ISO 27001
☐ ISO 27017
☐ ISO 27018
☐ HITRUST CSF
☐ FedRAMP (Authorization Level: [____])
☐ PCI DSS (if processing payment data)
☐ Other: [________________________________]

(a) Provider shall maintain such certifications throughout the Subscription Term.

(b) Upon Customer's reasonable written request (no more than once annually), Provider shall provide copies of current audit reports and certifications.

(c) Customer may conduct or commission a security assessment of Provider's facilities and practices upon reasonable advance notice and at Customer's expense, subject to Provider's reasonable security and confidentiality requirements.

5.6 Security Incident Response

(a) Provider shall notify Customer of any Security Breach affecting Customer Data within [____] hours of discovery.

(b) Notification shall include:

Description of the incident
Types of data potentially affected
Measures taken to contain and remediate
Contact information for further inquiries
Recommended protective actions for Customer

(d) Provider shall preserve evidence related to Security Breaches for forensic investigation.

5.7 South Dakota Data Breach Notification Compliance

In the event of a Breach of System Security requiring notification under SDCL §§ 22-40-19 to 22-40-26:

(a) Provider shall notify Customer immediately and in no event later than [____] hours after determining a breach has occurred;

(b) Provider shall cooperate with Customer in providing notification to affected South Dakota residents no later than sixty (60) days after discovery of the breach, as required by SDCL § 22-40-21;

(c) If a breach affects more than two hundred fifty (250) South Dakota residents, Provider shall assist Customer in notifying the South Dakota Attorney General by mail or electronic mail, as required by SDCL § 22-40-22;

(d) Provider acknowledges that notification may be delayed if law enforcement determines that notification would impede a criminal investigation (SDCL § 22-40-24);

(e) If Provider is regulated by federal law (e.g., GLBA, HIPAA) and notifies affected residents in accordance with those laws, such notification shall be deemed compliant with South Dakota requirements (SDCL § 22-40-25);

(f) Harm Analysis Exception: Notification is not required if, after appropriate investigation and notification to the South Dakota Attorney General, the Information Holder reasonably determines that the breach is not likely to result in harm to the affected individual. Such determination must be documented and retained for at least three (3) years (SDCL § 22-40-21);

(g) Failure to comply with South Dakota breach notification requirements may result in civil penalties of up to ten thousand dollars ($10,000) per day for each violation (SDCL § 22-40-26);

(h) Provider shall bear the costs of notification and credit monitoring services if the breach results from Provider's negligence or failure to comply with this Agreement.

5.8 No Comprehensive State Privacy Law

(a) The parties acknowledge that as of the Effective Date, South Dakota has NOT enacted a comprehensive consumer data privacy law comparable to those in other states.

(b) Notwithstanding the absence of such legislation, Provider shall process Customer Data in accordance with the data handling and security provisions of this Agreement and all applicable federal laws.

(c) If South Dakota enacts comprehensive data privacy legislation during the Subscription Term, the parties shall negotiate in good faith any necessary amendments to this Agreement to achieve compliance within the required timeframe.

(d) To the extent Customer is subject to privacy laws of other jurisdictions (e.g., CCPA/CPRA, GDPR), Provider shall cooperate with Customer to facilitate compliance.

5.9 Subprocessors

(a) Provider may engage subprocessors to assist in providing the Services, provided:

Subprocessors are bound by data protection obligations no less protective than this Agreement
Provider remains liable for subprocessor compliance
Provider maintains an updated list of subprocessors

(b) Provider shall notify Customer of any material changes to subprocessors at least [____] days in advance.

(c) Customer may object to new subprocessors; if Provider proceeds over Customer's objection, Customer may terminate without penalty.

5.10 Data Backup and Recovery

(a) Provider shall perform [________________________________] backups of Customer Data.

(b) Backups shall be retained for [____] days.

(d) Provider shall test backup restoration procedures at least [________________________________].

ARTICLE 6: ACCEPTABLE USE AND RESTRICTIONS

6.1 Acceptable Use Policy

Customer and Authorized Users shall:

(a) Use the Services only for lawful purposes and in compliance with all applicable laws;

(b) Comply with all Documentation and Provider's reasonable usage policies;

(d) Promptly report any suspected security breaches or unauthorized access.

6.2 Prohibited Activities

Customer and Authorized Users shall not:

(a) License, sublicense, sell, resell, rent, lease, transfer, assign, or distribute the Services to third parties;

(b) Modify, copy, or create derivative works based on the Services or Documentation;

(d) Access the Services to build a competitive product or service;

(e) Use the Services to store or transmit Malicious Code;

(f) Interfere with or disrupt the integrity or performance of the Services;

(g) Attempt to gain unauthorized access to the Services or related systems;

(h) Use the Services to transmit unlawful, harassing, defamatory, or fraudulent content;

(i) Use the Services in violation of any third party's intellectual property or privacy rights;

(j) Exceed licensed usage limits or circumvent usage restrictions;

(k) Remove, alter, or obscure any proprietary notices on the Services.

6.3 Usage Monitoring

(a) Provider may monitor usage to ensure compliance with this Agreement;

(b) Provider shall notify Customer of any significant usage anomalies;

6.4 Suspension

Provider may suspend Customer's access to the Services:

(a) If Customer's use poses a security threat to Provider or other customers;

(b) If Customer is in material breach of this Agreement and fails to cure within [____] days after notice;

(d) For non-payment of undisputed Fees more than [____] days past due.

Provider shall provide advance notice of suspension when practicable and shall restore access promptly when the grounds for suspension are resolved.

ARTICLE 7: FEES AND PAYMENT

7.1 Subscription Fees

Customer shall pay the following subscription Fees:

Description	Amount	Billing Frequency
Base Subscription Fee	$[________________________________]	☐ Monthly ☐ Quarterly ☐ Annually
Per User Fee	$[________________________________] per user	☐ Monthly ☐ Quarterly ☐ Annually
Data Storage (above included amount)	$[________________________________] per GB	☐ Monthly ☐ Quarterly ☐ Annually
API Calls (above included amount)	$[________________________________] per 1,000 calls	☐ Monthly ☐ Quarterly ☐ Annually
Additional Modules/Features	$[________________________________]	☐ Monthly ☐ Quarterly ☐ Annually

7.2 Professional Services Fees

Service	Rate/Fee	Estimate
Implementation Services	$[________________________________]	[________________________________]
Training Services	$[________________________________] per hour/day	[________________________________]
Custom Development	$[________________________________] per hour	[________________________________]
Consulting Services	$[________________________________] per hour	[________________________________]
On-Site Services	$[________________________________] per day plus expenses	[________________________________]

7.3 Payment Terms

(a) Invoicing: Provider shall invoice Customer:
☐ In advance for each billing period
☐ Upon execution of this Agreement for the first year
☐ According to payment milestones in the Order Form
☐ Other: [________________________________]

(b) Payment Due: All invoices are due and payable within [____] days of invoice date.

(c) Payment Method:
☐ ACH/Wire Transfer
☐ Credit Card (subject to processing fees of [____]%)
☐ Check
☐ Other: [________________________________]

7.4 Taxes - South Dakota SaaS Taxability

(a) All Fees are exclusive of taxes unless otherwise stated.

(b) South Dakota Sales Tax on SaaS: The parties acknowledge that South Dakota treats SaaS as a taxable service. The statewide sales tax rate is 4.5%, with local municipal taxes that may bring the total combined rate to between 5.2% and 6.2% depending on the jurisdiction.

(c) South Dakota has NO state income tax. Neither Provider nor Customer owes South Dakota income tax on the transactions contemplated by this Agreement.

(d) Customer is responsible for applicable sales and use taxes based on the location of use.

(e) Customer shall provide valid exemption certificates if applicable.

(f) Provider is responsible for taxes based on Provider's income in its home jurisdiction.

7.5 Late Payment

(a) Late payments shall bear interest at the rate of twelve percent (12%) per annum, which is the legal maximum rate under SDCL § 54-3-4 absent a written agreement establishing a different rate.

(b) No Usury Limit on Written Agreements: The parties acknowledge that under SDCL § 54-3-1.1, there is no maximum interest rate or charge, or usury rate restriction, between persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement. The parties may therefore agree to a different rate:

☐ 12% per annum (statutory default)
☐ [____]% per annum (as established by this Written Agreement)

(d) Provider may suspend Services for undisputed amounts more than [____] days past due.

7.6 Fee Disputes

(a) Customer shall notify Provider of any disputed charges within [____] days of invoice date.

(b) Customer shall pay all undisputed amounts by the due date.

(d) Provider shall not suspend Services for amounts subject to a bona fide dispute.

7.7 Price Increases

(a) Fees are fixed for the Initial Term.

(b) Provider may increase Fees for Renewal Terms by providing written notice at least [____] days before the Renewal Term.

ARTICLE 8: TERM AND RENEWAL

8.1 Initial Term

This Agreement shall commence on the Effective Date and continue for an Initial Term of:

☐ One (1) year
☐ Two (2) years
☐ Three (3) years
☐ Other: [________________________________]

8.2 Renewal

(a) This Agreement shall automatically renew for successive Renewal Terms of [________________________________] unless either party provides written notice of non-renewal at least [____] days before the end of the then-current term.

(b) Provider shall provide Customer with written notice of automatic renewal not less than thirty (30) days nor more than sixty (60) days before the renewal deadline, clearly disclosing:

That the Agreement will automatically renew unless cancelled
The renewal Fees that will be charged
Methods to obtain renewal details and cancellation procedures

(c) Customer may terminate at any time for convenience by providing [____] days written notice, subject to payment of:
☐ All Fees through the end of the then-current term
☐ Early termination fee of [________________________________]
☐ No early termination fee
☐ Other: [________________________________]

8.3 Effect of Expiration or Termination

Upon expiration or termination of this Agreement:

(a) All rights and licenses granted to Customer shall immediately terminate;

(b) Customer shall immediately cease all use of the Services;

(d) Each party shall return or destroy Confidential Information as directed by the disclosing party;

(e) Provisions that by their nature should survive shall continue in effect.

ARTICLE 9: TERMINATION

9.1 Termination for Cause

Either party may terminate this Agreement immediately upon written notice if:

(a) The other party materially breaches this Agreement and fails to cure within [____] days after written notice;

(b) The other party becomes insolvent, files for bankruptcy, or makes an assignment for the benefit of creditors;

9.2 Provider Termination Rights

Provider may terminate this Agreement:

(a) Immediately if Customer's use of the Services violates applicable law or poses a threat to Provider's systems or other customers;

(b) If Customer fails to pay undisputed Fees within [____] days after a second written notice;

9.3 Customer Termination Rights

Customer may terminate this Agreement:

(a) If Provider fails to meet the SLA for [____] consecutive months pursuant to Section 4.7;

(b) If Provider experiences a Security Breach materially affecting Customer Data and fails to remediate within a reasonable time;

9.4 Refund Upon Termination

(a) If Customer terminates for cause, Provider shall refund prepaid Fees for the unused portion of the Subscription Term.

(b) If Provider terminates for cause, no refund shall be due.

ARTICLE 10: DATA RETURN AND DELETION

10.1 Data Export During Subscription

During the Subscription Term, Customer may export Customer Data at any time through:

☐ Self-service export functionality within the Services
☐ API access for programmatic data retrieval
☐ Provider-assisted export upon request
☐ Other: [________________________________]

10.2 Data Export Format

Customer Data shall be made available in the following formats:

☐ CSV (Comma-Separated Values)
☐ JSON (JavaScript Object Notation)
☐ XML (Extensible Markup Language)
☐ Native application format
☐ Database dump (SQL format)
☐ Other: [________________________________]

10.3 Transition Assistance

Upon expiration or termination, Provider shall:

(a) Provide Customer access to export Customer Data for a period of [____] days following the termination effective date;

(b) Provide reasonable assistance with data migration at Provider's then-current Professional Services rates;

10.4 Data Deletion

(a) Upon Customer's written request following the transition period, or upon expiration of the transition period without a request for extension, Provider shall:

Delete all Customer Data from production systems within [____] days
Delete Customer Data from backup systems within [____] days or upon normal backup rotation

(b) Provider shall provide written certification of deletion upon Customer's request.

(c) Provider may retain Customer Data as required by law or for legitimate legal purposes, subject to continued confidentiality obligations.

10.5 Survival of Data Obligations

Provider's obligations regarding Customer Data confidentiality and security shall survive termination until all Customer Data has been deleted or returned.

ARTICLE 11: INTELLECTUAL PROPERTY

11.1 Provider Intellectual Property

(a) Provider retains all right, title, and interest in and to the Services, Documentation, and all related intellectual property, including:

Software code, architecture, and design
Algorithms, processes, and methodologies
User interfaces and user experience designs
Trade Secrets as defined under SDCL § 37-29-1(4)
All improvements, modifications, and derivative works

(b) No license or right is granted except as expressly set forth herein.

11.2 Customer Intellectual Property

(a) Customer retains all right, title, and interest in and to Customer Data and Customer's pre-existing intellectual property.

(b) Customer grants Provider a limited, non-exclusive license to use Customer Data solely as necessary to provide the Services.

11.3 Feedback

(a) If Customer provides suggestions, ideas, or feedback regarding the Services ("Feedback"), Provider may use such Feedback without restriction or compensation.

(b) Customer hereby assigns to Provider all rights in any Feedback.

11.4 Aggregated Data

(a) Provider may collect and analyze aggregated, anonymized data derived from Customer's use of the Services that does not identify Customer or any individual ("Aggregated Data").

(b) Provider may use Aggregated Data to improve the Services, develop new products, and for other lawful business purposes.

11.5 Custom Development

For any custom development performed under this Agreement:

☐ Provider Ownership: Provider owns all custom developments; Customer receives a license to use
☐ Customer Ownership: Customer owns all custom developments; Provider receives a license to incorporate into Services
☐ Joint Ownership: Parties jointly own custom developments
☐ Work Made for Hire: Custom developments are works made for hire owned by Customer
☐ As Specified: Ownership determined per individual Statement of Work

ARTICLE 12: CONFIDENTIALITY

12.1 Confidentiality Obligations

Each party agrees to:

(a) Maintain the confidentiality of the other party's Confidential Information using at least the same degree of care it uses to protect its own confidential information, but no less than reasonable care;

(b) Not disclose Confidential Information to any third party except as expressly permitted herein;

(d) Limit access to Confidential Information to employees, contractors, and agents with a need to know who are bound by confidentiality obligations.

12.2 Exclusions

Confidential Information does not include information that:

(a) Is or becomes publicly available through no fault of the receiving party;

(b) Was rightfully known to the receiving party without restriction before disclosure;

(d) Is independently developed without use of Confidential Information.

12.3 Permitted Disclosures

A party may disclose Confidential Information:

(a) To its professional advisors bound by professional confidentiality obligations;

(b) As required by law, regulation, or court order, provided the disclosing party gives prompt notice (if legally permitted) to allow the other party to seek protective measures;

12.4 Trade Secret Protection Under South Dakota Law

(a) The parties acknowledge that certain Confidential Information may constitute Trade Secrets under the South Dakota Uniform Trade Secrets Act, SDCL Ch. 37-29.

(b) Each party agrees to maintain reasonable measures to preserve the secrecy of Trade Secrets.

(c) Under SDCL § 37-29-3, a complainant may recover damages for misappropriation, including both actual loss and unjust enrichment. If willful and malicious misappropriation exists, the court may award exemplary damages of up to two (2) times any actual damages award.

12.5 Duration

Confidentiality obligations shall survive termination of this Agreement for a period of [____] years, except that obligations regarding Trade Secrets shall continue for as long as the information qualifies as a Trade Secret under applicable law.

12.6 Return or Destruction

Upon termination or upon request, each party shall return or destroy the other party's Confidential Information and certify such return or destruction in writing.

ARTICLE 13: WARRANTIES

13.1 Provider Warranties

Provider warrants that:

(a) Performance Warranty: The Services will perform materially in accordance with the Documentation during the Subscription Term;

(b) Authority: Provider has full power and authority to enter into this Agreement and grant the rights herein;

(c) Non-Infringement: To Provider's knowledge, the Services do not infringe any third party's intellectual property rights;

(d) Malicious Code: The Services will not contain Malicious Code introduced by Provider;

(e) Compliance: Provider will comply with all laws applicable to Provider's provision of the Services;

(f) Personnel: Provider's personnel performing Professional Services will have the necessary skills and qualifications;

(g) Security: Provider will maintain the information security program described in Article 5.

13.2 Customer Warranties

Customer warrants that:

(a) Customer has full power and authority to enter into this Agreement;

(b) Customer owns or has the right to provide Customer Data to Provider;

(d) Customer will use the Services in compliance with this Agreement and applicable law.

13.3 Warranty Remedies

For breach of Provider's Performance Warranty:

(a) Customer shall notify Provider of any warranty claim within [____] days of discovery;

(b) Provider shall use commercially reasonable efforts to correct the non-conformity;

(c) If Provider cannot correct the non-conformity within [____] days, Customer may terminate the affected Services and receive a pro-rata refund.

13.4 Disclaimer of Warranties

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ARTICLE, TO THE MAXIMUM EXTENT PERMITTED BY SDCL § 57A-2-316:

(a) PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;

(b) PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE;

(d) ANY THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.

SOUTH DAKOTA UCC CONSPICUOUSNESS NOTICE: THE FOREGOING DISCLAIMERS OF IMPLIED WARRANTIES, INCLUDING THE DISCLAIMER OF THE IMPLIED WARRANTY OF MERCHANTABILITY, ARE SET FORTH IN CONSPICUOUS LANGUAGE AS REQUIRED BY SDCL § 57A-2-316. CUSTOMER ACKNOWLEDGES HAVING READ AND UNDERSTOOD THESE DISCLAIMERS.

ARTICLE 14: INDEMNIFICATION

14.1 Provider Indemnification

Provider shall defend, indemnify, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claims, damages, losses, liabilities, and expenses (including reasonable attorneys' fees) arising from:

(a) Allegations that the Services infringe any United States patent, copyright, trademark, or misappropriate any trade secret;

(b) Provider's gross negligence or willful misconduct;

(d) Provider's violation of applicable law in its provision of the Services.

14.2 IP Indemnification Exclusions

Provider's indemnification obligations do not apply to claims arising from:

(a) Modifications to the Services made by Customer without Provider's authorization;

(b) Combination of the Services with products, services, or data not provided by Provider;

(d) Customer Data or Customer's specifications that caused the alleged infringement;

(e) Use of a non-current version of the Services if infringement would have been avoided by using the current version.

14.3 Customer Indemnification

Customer shall defend, indemnify, and hold harmless Provider, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claims, damages, losses, liabilities, and expenses (including reasonable attorneys' fees) arising from:

(a) Customer Data, including claims that Customer Data infringes or violates third-party rights;

(b) Customer's breach of the Acceptable Use Policy;

(d) Customer's violation of applicable law in its use of the Services.

14.4 Indemnification Procedures

The indemnified party shall:

(a) Provide prompt written notice of any claim;

(b) Grant the indemnifying party sole control of the defense and settlement;

(d) Not settle any claim without the indemnifying party's prior written consent.

ARTICLE 15: LIMITATION OF LIABILITY

15.1 Exclusion of Consequential Damages

TO THE MAXIMUM EXTENT PERMITTED BY SDCL § 57A-2-719 AND APPLICABLE SOUTH DAKOTA LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOUTH DAKOTA NOTE: South Dakota courts strongly uphold freedom of contract principles. Limitation of liability provisions are generally enforceable in commercial agreements between sophisticated parties.

15.2 Liability Cap

EXCEPT AS PROVIDED IN SECTION 15.3, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED:

☐ The total Fees paid or payable by Customer during the twelve (12) months preceding the claim
☐ The total Fees paid or payable by Customer during the twenty-four (24) months preceding the claim
☐ $[________________________________]
☐ Other: [________________________________]

15.3 Exceptions to Limitations

The limitations in Sections 15.1 and 15.2 shall not apply to:

(a) Either party's indemnification obligations under Article 14;

(b) Either party's breach of confidentiality obligations under Article 12;

(d) Claims arising from a party's gross negligence or willful misconduct;

(e) Claims arising from Provider's breach of its data security obligations resulting in unauthorized disclosure of Customer Data;

(f) Claims arising from Provider's unauthorized use or disclosure of Customer Data.

15.4 Enhanced Liability Cap for Certain Claims

For claims described in Section 15.3(b) and (e), each party's liability shall not exceed:

☐ Two (2) times the general liability cap
☐ Three (3) times the general liability cap
☐ $[________________________________]
☐ No enhanced cap (unlimited liability)

15.5 Acknowledgment

THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS ARTICLE REFLECT A REASONABLE ALLOCATION OF RISK AND ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

ARTICLE 16: INSURANCE

16.1 Required Insurance

Provider shall maintain the following insurance coverages during the Subscription Term and for [____] years thereafter:

Coverage Type	Minimum Limit	Requirements
Commercial General Liability	$[________________________________] per occurrence / $[________________________________] aggregate	Including products/completed operations
Professional Liability/E&O	$[________________________________] per claim / $[________________________________] aggregate	Covering technology professional services
Cyber Liability/Data Breach	$[________________________________] per incident / $[________________________________] aggregate	Including network security, privacy liability, breach response
Workers' Compensation	Statutory limits	As required by South Dakota law
Employer's Liability	$[________________________________]	Per accident and disease
Umbrella/Excess Liability	$[________________________________]	Excess of primary coverages

16.2 Insurance Requirements

(a) All insurance shall be provided by carriers with an A.M. Best rating of A- or better;

(b) Provider shall provide certificates of insurance upon Customer's request;

(d) Provider shall provide at least thirty (30) days advance notice of cancellation or material change;

(e) Commercial General Liability and Umbrella policies shall name Customer as an additional insured.

16.3 Self-Insurance

☐ Provider may self-insure for: [________________________________]
☐ Self-insurance is not permitted

ARTICLE 17: GOVERNING LAW AND DISPUTE RESOLUTION

17.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota, without regard to its conflict of laws principles.

17.2 Venue and Jurisdiction

The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in:

☐ Minnehaha County, South Dakota (Sioux Falls)
☐ Pennington County, South Dakota (Rapid City)
☐ Hughes County, South Dakota (Pierre)
☐ [________________________________] County, South Dakota

Each party waives any objection to such jurisdiction and venue, including inconvenient forum.

17.3 Dispute Resolution Process

Before initiating litigation, the parties agree to the following escalation process:

Step 1 - Informal Resolution: Representatives shall attempt to resolve disputes informally within [____] business days.

Step 2 - Executive Escalation: If unresolved, disputes shall be escalated to each party's executive officer (or designee) for resolution within [____] business days.

Step 3 - Mediation: If still unresolved, the parties shall participate in mediation administered by [________________________________] before commencing litigation. Mediation costs shall be shared equally.

☐ Step 4 - Arbitration (Optional):
If mediation is unsuccessful, disputes shall be resolved by binding arbitration administered by [________________________________] in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted in [________________________________], South Dakota.

17.4 Jury Trial Waiver

TO THE FULLEST EXTENT PERMITTED BY SOUTH DAKOTA LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

SDCL § 15-6-38(d) provides that failure to serve a demand for jury trial constitutes a waiver.

17.5 Injunctive Relief

Notwithstanding any dispute resolution procedures, either party may seek injunctive or other equitable relief from any court of competent jurisdiction to prevent irreparable harm pending resolution of disputes.

17.6 Prevailing Party

In any legal proceeding arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.

ARTICLE 18: GENERAL PROVISIONS

18.1 Entire Agreement

This Agreement, including all Order Forms, Statements of Work, and exhibits, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, proposals, and representations, whether written or oral.

18.2 Amendments

No amendment to this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.

18.3 Order of Precedence

In the event of conflict, the following order of precedence applies: (1) Order Forms; (2) Statements of Work; (3) this Agreement; (4) Documentation.

18.4 Assignment

Neither party may assign this Agreement without the other party's prior written consent, except that either party may assign to an Affiliate or in connection with a merger, acquisition, or sale of substantially all assets.

18.5 Notices

Notices shall be in writing and delivered by certified mail, overnight courier, or email with confirmation.

Party	Notice Address
Provider	[________________________________]
	[________________________________]
	Email: [________________________________]
Customer	[________________________________]
	[________________________________]
	Email: [________________________________]

18.6 Force Majeure

Neither party shall be liable for failure or delay in performance due to causes beyond its reasonable control. If force majeure continues for more than [____] days, either party may terminate affected Services without liability.

18.7 Waiver

No waiver of any right or remedy shall be effective unless in writing.

18.8 Severability

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in effect.

18.9 Independent Contractors

The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, or employment relationship.

18.10 Freedom of Contract

The parties acknowledge South Dakota's strong tradition of freedom of contract. The terms of this Agreement, including Fees, interest rates, and limitation of liability provisions, have been negotiated at arm's length between sophisticated commercial parties and represent the voluntary agreement of both parties.

18.11 Compliance with Laws

Each party shall comply with all applicable laws, including the South Dakota Deceptive Trade Practices and Consumer Protection Act (SDCL Ch. 37-24) where applicable.

18.12 Electronic Signatures

In accordance with SDCL Ch. 53-12 (Uniform Electronic Transactions Act):

(a) This Agreement may be executed electronically;

(b) Electronic signatures have the same legal effect as original signatures.

18.13 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original.

18.14 Export Compliance

Customer shall comply with all applicable export control laws and regulations.

18.15 Government Customers

If Customer is a South Dakota state agency, additional terms may apply per the Order Form.

18.16 No State Income Tax Advantage

The parties acknowledge that South Dakota does not impose a state income tax. This may present advantages for structuring transactions under this Agreement, though neither party provides tax advice.

18.17 Construction

This Agreement shall be construed without regard to any presumption against the party that drafted it.

ARTICLE 19: EXECUTION

By signing below, the parties acknowledge that they have read, understand, and agree to be bound by all terms and conditions of this Agreement.

PRE-EXECUTION CHECKLIST

Provider Verification:
☐ All Order Forms completed and attached
☐ Pricing confirmed and documented
☐ South Dakota sales tax registration confirmed
☐ Service level commitments confirmed
☐ Security certifications current
☐ Insurance certificates available
☐ Legal review completed
☐ Authority to sign verified

Customer Verification:
☐ Business requirements documented
☐ Technical requirements reviewed
☐ Security requirements addressed
☐ Sales tax obligations confirmed
☐ Late payment interest rate agreed
☐ Budget approval obtained
☐ Legal review completed
☐ Authority to sign verified

SIGNATURE PAGE

PROVIDER

[________________________________]

Field	Information
Signature	________________________________________________
Printed Name	[________________________________]
Title	[________________________________]
Date	[__/__/____]

CUSTOMER

[________________________________]

Field	Information
Signature	________________________________________________
Printed Name	[________________________________]
Title	[________________________________]
Date	[__/__/____]

EXHIBIT A: ORDER FORM

Order Form Number: [________________________________]

Order Form Effective Date: [__/__/____]

Services Ordered

Service/Module	Description	Quantity	Unit Price	Total
[________________________________]	[________________________________]	[____]	$[________]	$[________]
[________________________________]	[________________________________]	[____]	$[________]	$[________]
[________________________________]	[________________________________]	[____]	$[________]	$[________]

Subscription Details

Field	Value
Initial Term	[________________________________]
Renewal Term	[________________________________]
Billing Frequency	☐ Monthly ☐ Quarterly ☐ Annually
Payment Terms	Net [____] days
Support Tier	☐ Standard ☐ Premium ☐ Enterprise
Uptime Commitment	[____]%

South Dakota Sales Tax Information

Field	Value
Applicable State Tax Rate	4.5%
Applicable Municipal Tax Rate	[____]%
Total Combined Rate	[____]%
Customer Exemption Status	☐ Taxable ☐ Exempt (certificate attached)

Pricing Summary

Category	Amount
Annual Subscription Fees	$[________________________________]
One-Time Implementation Fees	$[________________________________]
Annual Support Fees (if separate)	$[________________________________]
Estimated South Dakota Sales Tax	$[________________________________]
Total First Year Investment	$[________________________________]

PROVIDER: ___________________________ Date: [__/__/____]

CUSTOMER: ___________________________ Date: [__/__/____]

EXHIBIT B: DATA PROCESSING ADDENDUM

B.1 Scope

This Data Processing Addendum ("DPA") supplements the Agreement with respect to Provider's processing of Personal Information on behalf of Customer.

B.2 Definitions

Terms not defined herein have the meanings set forth in the Agreement.

B.3 Customer Responsibilities

Customer shall:

(a) Ensure a lawful basis exists for processing Personal Information;

(b) Provide clear and accurate instructions to Provider;

B.4 Provider Responsibilities

Provider shall:

(a) Process Personal Information only as instructed by Customer;

(b) Ensure personnel are bound by confidentiality obligations;

(d) Assist Customer with data subject requests under any applicable federal or other state laws;

(e) Delete or return Personal Information upon termination;

(f) Make available information necessary to demonstrate compliance.

B.5 Cross-Jurisdictional Privacy Compliance

(a) While South Dakota has no comprehensive privacy law, Customer may be subject to privacy laws of other jurisdictions. Provider shall cooperate with Customer in complying with such laws.

(b) If South Dakota enacts comprehensive privacy legislation, the parties shall negotiate amendments in good faith.

B.6 Subprocessors

(a) Customer authorizes Provider to engage subprocessors listed at: [________________________________]

(b) Provider shall notify Customer of subprocessor changes [____] days in advance.

B.7 Audit Rights

Upon reasonable notice, Customer may audit Provider's compliance with this DPA.

EXHIBIT C: SERVICE LEVEL AGREEMENT DETAILS

C.1 Availability Measurement

Provider measures availability using [________________________________].

C.2 Excluded Events

☐ Scheduled maintenance within designated windows
☐ Emergency maintenance for security issues
☐ Customer-caused issues
☐ Third-party service failures
☐ Force majeure events
☐ Network issues outside Provider's control

C.3 Maintenance Schedule

Maintenance Type	Window	Frequency	Notice Required
Standard Maintenance	[________________________________]	[________]	[____] hours
Major Updates	[________________________________]	[________]	[____] days
Emergency Maintenance	As needed	As needed	Best efforts

C.4 Monitoring and Reporting

Provider shall:

(a) Monitor Services availability 24/7/365;

(b) Provide real-time status at: [________________________________];

(d) Alert Customer of outages within [____] minutes.

PRACTITIONER NOTES FOR SOUTH DAKOTA

South Dakota-Specific Considerations

No State Income Tax: South Dakota does not impose a state income tax on individuals or corporations. This may be advantageous for both Provider and Customer structuring transactions in South Dakota. There are no income tax withholding requirements.
Strong Freedom of Contract: South Dakota courts strongly uphold the freedom of contract between sophisticated commercial parties. Limitation of liability provisions, indemnification clauses, and other contractual allocations of risk are generally enforced as written.
No Usury Limits on Written Agreements (SDCL § 54-3-1.1): South Dakota effectively has no usury limit for interest rates established by written agreement between businesses. The default legal rate is 12% per annum (SDCL § 54-3-4) absent a written agreement. South Dakota's decision to repeal its usury laws in 1980 made it a major hub for financial services (credit card issuers). Note: Consumer protections may apply to payday/auto title loans (36% APR cap per IM 21, 2016).
SaaS Taxability -- 4.5% State + Local: South Dakota treats SaaS as a taxable service. The 4.5% state rate may be supplemented by local municipal taxes (typically 1-2%), bringing the total combined rate to approximately 5.2%-6.2%. South Dakota is one of the few states that broadly taxes services, including professional services.
No Comprehensive Data Privacy Law: As of February 2026, South Dakota has NOT enacted a comprehensive consumer data privacy law. However, providers should still implement robust data handling practices and be prepared for potential legislation. Cross-jurisdictional compliance may be required if Customer operates in states with privacy laws.
Data Breach Notification (SDCL §§ 22-40-19 to 22-40-26): Enacted 2018. Notification within 60 days of breach discovery. AG notification for breaches affecting 250+ residents. Harm analysis exception: notification not required if breach is not likely to result in harm (must document determination and retain for 3 years). GLBA/HIPAA compliance = South Dakota compliance. Penalties: up to $10,000/day per violation.
Jury Waiver: Generally enforceable in commercial contracts. SDCL § 15-6-38(d) addresses procedural jury waivers. South Dakota follows standard principles: conspicuous language, knowing and voluntary consent.
UCC Warranty Disclaimers (SDCL § 57A-2-316): Standard UCC requirements. Merchantability disclaimer must mention "merchantability" and be conspicuous. Fitness disclaimer must be in writing and conspicuous.
Trade Secrets (SDCL Ch. 37-29): South Dakota adopted the UTSA. Exemplary damages up to two times actual damages for willful and malicious misappropriation. Standard 3-year limitation period.
Statute of Limitations: Written contracts: 6 years (SDCL § 15-2-13). UCC sales claims: 4 years (SDCL § 57A-2-725). South Dakota is a jurisdiction that strongly favors enforcement of contractual terms as written.

This Enterprise Software as a Service Agreement template is designed for use in South Dakota and incorporates applicable South Dakota statutory requirements, including the state's business-friendly regulatory environment, absence of state income tax, and flexible usury framework. Legal counsel should review this Agreement before execution to ensure compliance with current law and suitability for specific business needs.

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About This Template

A contract is a written record of what two or more parties agreed to and what happens if someone does not follow through. Clear language, defined terms, and clean signature blocks keep disputes small and enforceable. The most common mistakes in contracts come from vague promises, missing details about timing or payment, and skipping standard protective clauses like governing law and dispute resolution.

Important Notice

This template is provided for informational purposes. It is not legal advice. We recommend having an attorney review any legal document before signing, especially for high-value or complex matters.

Last updated: April 2026