 |
|||||||
|
|
|||||||
Software Agreement Document Package |
Redacted Document Package |
| This agreement is a sample of a document contained in our Software Agreement Document Package. Omitted portions are included in the fully licensed version. Documents are provided in Word and in Rich Text Format (RTF). All documents are conveniently accessed through an E-Book indexing system. |
SOFTWARE CUSTOMIZATION AGREEMENT
Master Customization Agreement Retaining Developer To Make Custom Modifications To Software Program – Developer Assigns Copyright To Customer
THIS SOFTWARE CUSTOMIZATION AGREEMENT (“Agreement”) is made and entered into on this _______ day of ______________________________, 20____, by and between _________________________________________, a _______________, ____________________ (hereinafter referred to as the “Customer”) and _________________________________________, a _______________, ____________________ (hereinafter referred to as the “Developer”).
RECITALS
A. The Customer is a [corporation] organized under the laws of the State of _______ who operates a [Describe business briefly] with principal business offices located at [Address].
B. The Developer is a [corporation] organized under the laws of the state of ____________ which provides software development and programming services by and through various employees and contractors.
C. Customer has obtained a license of certain Software Programs (“Software Programs”) from the Developer which Software Programs are described in Exhibit “A”.
D. Customer requires certain custom modifications to be made to the Software Programs in accordance with the functional and technical specifications set forth in Exhibit “B” (“Software Modifications”) and wishes to retain the services of the Developer to make such custom modifications.
E. Customer wishes to obtain an assignment of the copyright in and to the Software Modifications from the Developer.
F. The Developer has expertise in the areas desired by the Customer and Developer wishes to accept the assignment to provide services to the Customer pursuant to the terms and conditions set forth in this Agreement.
NOW THEREFOR, the parties hereto, intending to be legally bound by the terms hereof, hereby enter into the following agreements:
ARTICLE
I
AGREEMENT TO PROVIDE SERVICES
1.1 Developer Retained. Customer hereby retains the services of the Dev [Portions Omitted - included In fully Licensed Version]ubject to the terms and conditions set forth in this Agreement.
1.2 Definition of Modification Specifications. The technical and functional aspects of the Software Program modifications are as set forth in Exhibit “B” attached hereto. Developer shall perform all necessa [Portions Omitted - included In fully Licensed Version] in order to create the modifications to the Software Programs in substantial compliance with the Specifications.
1.3 Commencement of Development. Developer shall commence development work on the Software Modifications within ____ (____) days following the complete execution of this Agreement by [Portions Omitted - included In fully Licensed Version]initial development fee payment provided for in this Agreement. Such Software Modifications shall be created substantially in conformance with the Specifications attached hereto as Exhibit “A.”
1.4 Changes To Specifications. The parties expect that there will be some changes to the Specifications after acceptance by both parties. Requests for changes shall be proposed by the Dev [Portions Omitted - included In fully Licensed Version]eptance of any change requests, the parties shall cooperate to equitably determine the impact on pricing, time commitments, scheduling and deadlines and other project factors and reflect these changes in the change order. All change orders must be approved and executed by the Development Coordinators of each party. Developer may not decline any changes in Specifications provided that Developer has ample staffing to meet any increased demands, Developer has ample expe [Portions Omitted - included In fully Licensed Version]ll the technical requirements of such changes, reasonable adjustments are made to project scheduling and deadlines, appropriate adjustments are made to the compensation for the project, the changes requested are reasonably achievable from a technical standpoint, and the changes are reasonable in scope.
1.5 Plan of Development. The development of the Software Modifications shall be conducted substantially in compliance with the Plan of Development attached hereto as Exhibit “C.” (hereinafter referred to as “Plan of Development”). The Plan of Development includes a description of the various steps [Portions Omitted - included In fully Licensed Version] phases with a description of the milestones to be achieved in each stage, estimated dates of completion for each phase of development, allocation of tasks for each phase and a listing of [Portions Omitted - included In fully Licensed Version]y the Customer for each phase, and definition of the Deliverables to be provided at the end of each phase and upon completion of the development process. The Development Coordinators shall periodically r [Portions Omitted - included In fully Licensed Version]f Development during the project and discuss any necessary revisions as the project moves forward. Developer shall devote sufficient time and effort and shall allocate sufficient personnel resources to the project as may be required for the development and testing thereof. Developer shall conduct and conclude such development and [Portions Omitted - included In fully Licensed Version], incorporate into the final version such modifications as the tests indicate are necessary, and conduct such further tests as may be required in the circumstances. Developer shall not be in default for failure to meet these timetable goals provided that the overall project is proceeding in a reasonable fashion and Developer is substantially achieving [Portions Omitted - included In fully Licensed Version]shall inform the Customer of factors that will lead to delays such as labor shortages, technical difficulties, competing projects, mechanical problems and other factors.
ARTICLE III
DEVELOPMENT COSTS AND FEES
3.1 Project Pricing. Customer shall pay to the Developer a Development Fee equal to $______ for the development of the Software Modifications. [Portions Omitted - included In fully Licensed Version]aid in the installments set forth in the Plan of Development based upon project milestones indicated therein.
3.2 Timing of Payments. All payments shall be due upon achievement of the milestones set forth in the Plan of Development. Customer shall be in default un [Portions Omitted - included In fully Licensed Version] is not received within ____ (___) days following such dates unless the Customer disputes the invoice in good faith. Upon default in payment, Developer is authorized [Portions Omitted - included In fully Licensed Version]reunder until the default is cured by payment in full. In the event that such default is not cured within ____ (____) days following invoice, the Developer may terminate this Agreement by written notice to the Customer. Upon such termination, Developer shall have no further obligations under this Agreement but all payments due through the date [Portions Omitted - included In fully Licensed Version]due and payable and Developer may take any and all actions necessary to collect the same, including but not limited to withholding delivery of any work product produced.
3.3 Project Expense Reimbursement. The fee to be paid to the Developer shall be exclusive of expense reimbursement which shall be treated separately. All such expenses shall [Portions Omitted - included In fully Licensed Version]pon invoice to Customer. Alternatively, Developer may request that such expenses be paid directly by the Customer or paid in advance to the Developer. The parties shall use [Portions Omitted - included In fully Licensed Version] expenses when creating the Plan of Development. Expenses may include such items as (I) postal charge [Portions Omitted - included In fully Licensed Version] long distance telephone charges, and other costs of project specific communications, (ii) costs [Portions Omitted - included In fully Licensed Version] licensing graphics, sound, or other content form third parties, (iii) costs of any special software or hardware that is necessary to complete the specific development task for the project, (iv) [Portions Omitted - included In fully Licensed Version] (v) costs of acquiring or leasing any special development tools made necessary by the nature of the project, and (vi) all other expenses identified by the parties in the Plan of Development. Expense item [Portions Omitted - included In fully Licensed Version]lude items that a within the normal overhead and operating expenses of the Developer.
3.4 Project Deposit. Upon acceptance of this Agreement, the Customer shall deliver to the Developer a deposit in an amount equal to %______ of the total estimated project costs. [Portions Omitted - included In fully Licensed Version]refundable to the Customer and shall be deemed earned by the Developer upon receipt thereof. The Developer shall credit the deposit to the last payment due by the Customer.
3.5 Taxes On Fees. The fees set forth above are exclusive of taxes. Customer shall be responsible for all taxes, levies, and assessments, excepting taxes based on the net income of Develo [Portions Omitted - included In fully Licensed Version], upon receipt of notice from Developer, promptly pay, or if Developer has paid any such amounts, reimburse Developer for all such taxes, levies, or assessments.
3.6 Verification Records. Developer shall maintain accounting, time, and other records as are necessary to verify any amount to be paid by the Customer hereunder. Upon any dispute of any invoice, Developer shall provide backup records to support the invoice that is questioned if applicable.
ARTICLE IV
COMPLETION AND ACCEPTANCE
4.1 Delivery. Upon completion of the Software Modifications, Developer shall notify the Development Coordinator for the Customer. The Development Coordinators for each party shall th [Portions Omitted - included In fully Licensed Version]ry, the Development Coordinators shall prepare and execute a mutually acceptable “Delivery Certificate.”
4.2 Acceptance Testing Procedures. The Development Coordinators for each party, with input and involvement from the Technical Coordinators for each party, shall, during the course if [Portions Omitted - included In fully Licensed Version]ment project, establish mutually agreeable acceptance testing procedures to be performed on completion of the project.
4.3 Performance of Acceptance Testing. Upon delivery, the parties shall reasonably cooperate in good faith to perform the agreed acceptance testing procedures. In no event shall the acceptance testing process last more than ____ (____) days following delivery, unless specifically provided in the agreed acceptanc [Portions Omitted - included In fully Licensed Version]edures for the project. Following the performance of acceptance testing, Customer shall, acting in good faith, give written notice of acceptance or rej [Portions Omitted - included In fully Licensed Version]e event the Deliverables are rejected, Customer shall detail the reasons for such rejection in the written notice. Additionally, the Customer shall identify with specificity the portions of the acceptance tests that form the basis for the rejection. In the event that such written notice is not provided within _____ (____) days following delivery, the Customer shall b [Portions Omitted - included In fully Licensed Version]have accepted the Deliverables. Following receipt of notice of rejection, Developer shall use reasonable diligence to correct any deficiencies cited in good faith by the Customer and to resolve any Customer concerns over the Deliverables.
ARTICLE V
PROPRIETARY
RIGHTS
5.1 License of Software. . Upon payment in full of all amounts due to the Developer, (i) the Customer shall be deemed to be the owner of all proprietary rights, i [Portions Omitted - included In fully Licensed Version]de for hire” as defined under the United States Copyright Act, (iii) Customer shall be deemed the owner of the Deliverables and all copyrights thereunder, and (iv) Developer shall execute any and all assignments, certificates of ownership, confirm [Portions Omitted - included In fully Licensed Version]mer’s ownership of the Deliverables.
5.2 Pre-Existing Works. In the event that the De [Portions Omitted - included In fully Licensed Version]licable third parties to grant, a perpetual, non-exclusive, royalty free license to use such pre-existing works in connection with the Deliverables.
5.3 Infringement On Third Party Rights. The Developer agrees to use reasonable diligence to avoid infringement on the proprietary rights of any third party in performance of the [Portions Omitted - included In fully Licensed Version], in whole or in part, any work created by any other party, except, where specifically disclosed by the Developer to the Customer and where a license to use such items is obtained for the benefit of the Customer. All such licenses shall be royalty free, perpetual, world-wide licenses, sufficient in scope to permit Customer’s full use and enj [Portions Omitted - included In fully Licensed Version]of the Deliverables, except where specifically agreed in writing by the Customer.
5.4 Inventions. [Portions Omitted - included In fully Licensed Version]
ARTICLE VI
EMPLOYEE AND CONTRACTORS
6.1 Independent Contractors. Developer shall use only bona fide employees to conduct all aspects of the development project, unless independent contractors are specifically consented to b [Portions Omitted - included In fully Licensed Version]pendent contractors written assignments of all items developed by or contributed to by such independent contractor in the course of their work on the development project and an agreement that all such items are created as “works for hire” under the copyright laws and are the sole and exclusive property of the Customer. Independent Contractors shall also be required to execute a confidentiality agreement in favor of the Customer.
6.2 Employees. Developer shall enter and maintain in full force and effect, written agreements with all of its employees in which the employees acknowledge that all work performed i [Portions Omitted - included In fully Licensed Version]he development project are “works for hire” and are the property of the Customer. Additionally, employees shall enter a confidentiality agreement agreeing to maintain the confidentiality of all information relative to the Customer.
ARTICLE VII
SUPPORT SERVICES
7.1 Basic Support Services. For a period of ______ (____) months following delivery of the Deliverables and final acceptance thereof by the Customer, Developer shall provide certain support services to the Customer related to the Software Modifications including the following: (i) telephone [Portions Omitted - included In fully Licensed Version] of the Software Modifications during the Developer’s normal business hours and (ii) such furthe [Portions Omitted - included In fully Licensed Version] the Software Modifications to operate substantially in accordance with the Specifications.
7.2 Compensation For Support Services. Customer shall compensate Developer at Developer’s then published rates for providing such support services that are necessary after ac [Portions Omitted - included In fully Licensed Version]nt for such services in advance of performing any support services hereunder. In the event that the Customer fails to make any payment within 10 days of invoice, or if the Customer fails to pay any amount required by the Developer in advance, Developer shall not have any obligation to perform support services.
7.3 Customer Responsibilities. Customer shall not attempt to correct an errors in the Software Modifications or do anything to alter or modify any programming code. Cus [Portions Omitted - included In fully Licensed Version]report any errors in the operation of the Software Modifications to the Developer and shall not take any actions that would increase the severity of the error. Customer shall use the Software Modifications only for its intended purpose and only in the manner intended [Portions Omitted - included In fully Licensed Version]upport services, these requirements being express preconditions to the availability of Developer support services hereunder.
7.4 Place of Support Services. All support services shall be provided by the Developer from the Developer’s facility, or through electronic access to the Customer’s compu [Portions Omitted - included In fully Licensed Version] facilities.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF
THE DEVELOPER
8.1 Performance. Developer represents and warrants that service hereunder shall be performed in a workmanlike manner consistent with industry standards, that all Deliverables shall function [Portions Omitted - included In fully Licensed Version]ederal and local laws, rules and regulations..
8.2 Pre-Existing Works. Developer represents and warrants that Customer, upon payment in full of all amounts due hereunder, shall have a perpetual, royalty free, worldwide license to use and pre-existing works, whether developed by the Developer or by and other party, which are used in connection with the Deliverables.
8.3 Warranty Disclaimers. Other than as specifically set forth in this Agreement, THE DELIVERABLES ARE DELIVERED TO CUSTOMER ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABIL [Portions Omitted - included In fully Licensed Version] ANY OTHER PARTY. DEVELOPER MAKES NO WARRANTY THAT THE DELIVERABLES WILL MEET CUSTOMER'S SPECIFIC OBJECTIVES OR NEEDS OR THAT THE DELIVERABLES WILL BE FREE FROM ERRORS OR BUGS. DEVELOPER MAKES NO WARRANTY THAT THERE WILL BE UNINTERUPTED OPERATION OF THE DELIVERABLES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING [Portions Omitted - included In fully Licensed Version]OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS.
8.4 Limitation On Damages. In no event will Developer be liable for any incidental, special or consequential damages in spits of the fact that the Customer acknowledges that Customer has been [Portions Omitted - included In fully Licensed Version]pment fee (exclusive of costs and expenses) actually paid to the Developer.
8.5 Third Party Claims. Developer shall not liable for claims made against the Customer or the Developer arising out of Customer’s use or ownership of the Deliverables and Custom [Portions Omitted - included In fully Licensed Version]or asserted by any other party.
ARTICLE IX
TERM AND TERMINATION
9.1 Term. This Agreement shall be effective upon execution hereof by both parties and shall remain in full force in effect for a period of _____ (____) years from the effective date; provide [Portions Omitted - included In fully Licensed Version]hereof. The obligation to provide support services following acceptance shall terminate following the expiration of the period described in the Article applicable to support services.
9.2 Termination Without Cause. Either party may terminate this Agreement prior to completion of the development project, with or without cause, by giving ____(_____) days prior written notice of termination to the other party.
9.3 Termination For Cause. Either party may terminate this Agreement for cause in the event that the other party substantially defaults under any term or condition contained here [Portions Omitted - included In fully Licensed Version]pment responsibilities, the Developer shall first be given thirty (30) days advanced written notice specifying the alleged deficiency in detail and Developer shall have such thirty (30) day period to reasonably cure the alleged default.
9.4 Termination Prior To Completion. Upon any early termination prior to completion of development, the Developer shall immediately cease work on the relevant project and shall issue an i [Portions Omitted - included In fully Licensed Version]er upon receipt thereof.
9.5 Survival of Certain Provisions. In the event of any termination, the following provisions shall continue in full force and affect: (i) the obligation of the Customer to make payments due hereunder to the Developer, (ii) confidentiality provisions, and (iii) representations and warranties as to proprietary rights of the Deliverables.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Excusable Delays. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of Developer shall not constitute a breach of this Agreement, provided that Developer has taken reasonable measures to notify Customer of the delay in writing and uses reasonab [Portions Omitted - included In fully Licensed Version]hall be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics.
10.2 Notices. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transm [Portions Omitted - included In fully Licensed Version] sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered five (5) business days after the date of mailing. Addresses and Email addresses for such notices shall be:
If To Developer: _____________________________________________
If To Customer: ______________________________________________
10.3 No Assignment. The Services to be performed by Developer hereunder are personal in nature, and Customer has engaged Developer as a result of Developer's unique expertise relating to such Services. Neither this Agreement nor any right, interest, duty or obligation hereunder may be assigned, transferred or delegated by Developer without the express written consent of Customer which consent may be withheld in the discretion of the Customer.
10.4 Independent Contractor Status. The parties agree that Developer shall be an independent contractor and not an agent, employee or representative of Customer. Customer sh [Portions Omitted - included In fully Licensed Version]f doing business and to furnish (or reimburse Customer for) all tools and materials necessary to accomplish the services required of the Developer pursuant to this Agreement, and shall incur all expenses associated with performance, except as expressly provided in Exhibits or amendments to this Agreement. Developer shall be responsible for paying all taxes on payments received pursuant to this Agreement and that Customer shall have no obligation to withho [Portions Omitted - included In fully Licensed Version]tion that may be imposed on Customer (i) to pay in withholding taxes or similar items or (ii) resulting from Developer's being determined not to be an independent contractor.
10.5 Arbitration. Except as specifically provided in this Agreement, the parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be submitted to binding arbitrati [Portions Omitted - included In fully Licensed Version]any court of competent jurisdiction. The parties shall each bear their own attorney fees with respect to such Arbitration but shall share equally the other costs and expenses of arbitration.
10.6 Controlling Law. In interpreting the terms of this Agreement, the parties agree that the laws of the State of ___________ shall be applicable. All suits permitted to be brought in any court shall be venued in __________ County, State of ____________.
10.7 This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supercedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreeme [Portions Omitted - included In fully Licensed Version]nforceability of effectiveness of the remainder of the Agreement shall not be effected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have duly entered and
executed this Agreement as of the day and year first above written and
represent and warrant that the party executing this Agreement on their behalf
is duly authorized.