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 Package Index Order Software Form Package
SOFTWARE DEVELOPMENT AGREEMENT

SOFTWARE DEVELOPMENT AGREEMENT

 

Master Development Agreement Retaining Developer For Specific Project

Developer Assigns Copyright  To Customer

 

THIS SOFTWARE DEVELOPMENT 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 wishes to have certain Software Programs (“Software Programs”) developed by the Developer as described in the Software Specifications attached hereto as Exhibit “A” (“Specifications”) and wishes to acquire an assignment of the copyright relative to such Software Programs from the Developer.

 

D.                  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,  herby enter into the following agreements:

 

ARTICLE I

AGREEMENT TO PROVIDE SERVICES

 

1.1     Commencement of Development.  [Portions Omitted - included In fully Licensed Version]are Programs shall be created substantially in conformance with the Specifications attached hereto as Exhibit “A.”

 

1.2      Changes To Specifications.  The parties expect that there will be some [Portions Omitted - included In fully Licensed Version]tors or the Technical Coordinators, but shall not be effective without the written consent of both parties.  Prior to acceptance 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 chan [Portions Omitted - included In fully Licensed Version]r may not decline any changes in Specifications  provided that Developer has ample staffing to meet any increased demands, Developer has ample expertise to fulfill the technical requiremen [Portions Omitted - included In fully Licensed Version]compensation for the project, the changes requested are reasonably achievable from a technical standpoint, and the changes are reasonable in scope.

 

1.3     Plan of Development.  The development of the Softwar [Portions Omitted - included In fully Licensed Version]ed to as “Plan of Development”).  The Plan of Development includes a description of the various steps involved in the development process,  various development 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 pha [Portions Omitted - included In fully Licensed Version]e end of each phase and upon completion of the development process.  The Development Coordinators shall periodically review the Plan of Development durin [Portions Omitted - included In fully Licensed Version]hall 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  tests in a professional manner, incorporate into the final version such  modifications as the tests indicate are [Portions Omitted - included In fully Licensed Version]eet these timetable goals provided that the overall project is proceeding in a reasonable fashion and Developer is substantially achieving project objectives.  Developer 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 II

DEVELOPMENT COORDINATION

 

2.1     Appointment of Development Coordinators.  Each party shall appoint a single individual [Portions Omitted - included In fully Licensed Version]sent the interests of the party in connection with the Development process.  The Development Coordinators of the parties shall communicate with each other on a regular periodic [Portions Omitted - included In fully Licensed Version] to assure the smooth administration of the Development process and the coordination of activities between the parties.

 

2.2     Functions of Development Coordinators.  The Development Coordin [Portions Omitted - included In fully Licensed Version]ators shall arrange all non-technical meetings and communications between the parties and shall be the primary point of contact relating to the progress made and decisions to be made with respec [Portions Omitted - included In fully Licensed Version]ve matters relating to the development projects shall be communicated through the Development Coordinators.  Each of the Development Coordinators shall be responsible for communicating within their respective organizations and procuring the input of management and others who are necessary for the achievement of project [Portions Omitted - included In fully Licensed Version]

 

2.3     Technical Coordinator.  Each party shall appoi [Portions Omitted - included In fully Licensed Version]her party, to act as Technical Coordinator to represent the interests of the party in connection with the Development process.  The Technical Coordinators of the parties shall communicate with each [Portions Omitted - included In fully Licensed Version]periodic basis regarding technical issues involved in the development process to assure the smooth administration of the Development process and the coordination of activities between [Portions Omitted - included In fully Licensed Version].

 

 

ARTICLE III

DEVELOPMENT COSTS AND FEES

 

3.1                 Project Pricing.  [Portions Omitted - included In fully Licensed Version]

 

3.2                 Timing of Payments.  [Portions Omitted - included In fully Licensed Version]hat 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 obligat [Portions Omitted - included In fully Licensed Version]

 

3.3                 Project Expense Reimbursement.  The fee to be paid to the Developer s [Portions Omitted - included In fully Licensed Version]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 their reasonable effort [Portions Omitted - included In fully Licensed Version], facsimile charges, long distance telephone charges, and other costs of project specific communications, (ii) costs of purchasing or licensing graphics, sound, or other content form third parties, (iii) costs [Portions Omitted - included In fully Licensed Version] software or hardware that is necessary to complete the specific development task for the project, (iv) travel expenses, (v) costs of acquiring or leasing any special d [Portions Omitted - included In fully Licensed Version] necessary by the nature of the project, and (vi) all other expenses identified by the parties in the Plan of Development.  Expense items shall not include 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 [Portions Omitted - included In fully Licensed Version]undable 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 Developer, and  shall, upon r [Portions Omitted - included In fully Licensed Version]from Developer, promptly pay, or if Developer  has paid any such amounts, reimburse Developer for all such taxes, levies,  or [Portions Omitted - included In fully Licensed Version]

 

3.6                 Verification Records.  Developer shall maintain accounting, time, and other r [Portions Omitted - included In fully Licensed Version]y 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 Program, Developer shall notify the Development Coordinator for the Customer.  The Development Coordinators for each party [Portions Omitted - included In fully Licensed Version]s of making delivery of the Deliverables (as defined herein) and for performing acceptance testing. Upon delivery, the Development Coordinators shall prepare and execute a mutually acceptable “Delivery Certificate.”

 

4.2                 Acceptance Testing Procedures.  The Development Coordinators for each [Portions Omitted - included In fully Licensed Version] 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 ac [Portions Omitted - included In fully Licensed Version] testing procedures for the project.  Following the performance of acceptance testing, Customer shall, acting in good faith, give written notice of acceptance or rejection of the Deliverables.  In the event the Deliverables are rejected, Customer shall detail the reasons for such rejection in the written notice.  Additionally, the Customer shal [Portions Omitted - included In fully Licensed Version] not provided within _____ (____) days following delivery, the Customer shall be deemed to have accepted the Deliverables.  Following receipt of notice of rejection, [Portions Omitted - included In fully Licensed Version] 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                 Customer Ownership.  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, including [Portions Omitted - included In fully Licensed Version]yrights, related to the Deliverables, (ii) all works created by the Developer shall be deemed “works made for hire” as define [Portions Omitted - included In fully Licensed Version]and (iv) Developer shall execute any and all assignments, certificates of ownership, confirmations of copyright ownership, copyright applications, and other items reasonably requested by the Customer to secure and confirm the Customer’s ownership of the Deliverables.

 

5.2                 Pre-Existing Works.  In the event that the Deliverables include any pre-existing works created by the Developer or any other party, the Developer hereby grants, and shall arrange for applicable third parties to gra [Portions Omitted - included In fully Licensed Version]y free license to use such pre-existing works in connect [Portions Omitted - included In fully Licensed Version]ith 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 creation [Portions Omitted - included In fully Licensed Version].  The Developer agrees that all aspects of the Deliverables shall be original works of creation and shall not use, in whole or in part, any work created by any other party, except, where specifically [Portions Omitted - included In fully Licensed Version] 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 s [Portions Omitted - included In fully Licensed Version]mer’s full use and enjoyment of the Deliverables, except where specifically agreed in writing by the Customer.

 

5.4                 Inventions.  The parties intend that all inventions and [Portions Omitted - included In fully Licensed Version] the course of the development project, conditioned on full and complete payment of all amounts due to Developer hereunder,  shall be the property of the Customer and not the Developer.  For purposes of this Agreement, Inventions shall mean and include any and all ideas, concepts, discoveries, designs, impr [Portions Omitted - included In fully Licensed Version]regardless of whether the same are patentable or protected under any Federal of State law, rule or regulation or under the common law of any state, or under International law.  Upon payment in full of all [Portions Omitted - included In fully Licensed Version] hereunder, Developer agrees to execute and assignment or other document reasonable requested by the Customer in order to assign and convey all Inventions arising from the development project to the Customer.

 

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 specifica [Portions Omitted - included In fully Licensed Version]ain from such independent 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 [Portions Omitted - included In fully Licensed Version]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 in the course of [Portions Omitted - included In fully Licensed Version] 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 [Portions Omitted - included In fully Licensed Version]Deliverables and final acceptance thereof by the Customer, Developer shall provide certain support services to the Customer related to the Software Program including the following: (i) telephone support regarding operation and use of the Software Program during the Developer’s normal business hours and (ii) such further programming s [Portions Omitted - included In fully Licensed Version]to correct any demonstrated errors in the operation of the Software Programs which are necessary to enable the Software Program to operate substantially in accordance with the Specifications.

 

7.2                 Compensation For Support Services.      Customer shall compensate Developer [Portions Omitted - included In fully Licensed Version] necessary after acceptance of the Software Program.  Additionally, Customer shall be responsible for paying or reimbursing Developer for all costs and expenses reasonably incurred by the Developer resulting from the provision of the support services.  All compensation for support services shall be paid w [Portions Omitted - included In fully Licensed Version]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 Develop [Portions Omitted - included In fully Licensed Version]vance, 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 Programs or do anything to alter or modify any programming code.  Customer shall promptly report any [Portions Omitted - included In fully Licensed Version] of the Software Program to the Developer and shall not take any actions that would increase the severity of the error.  Customer shall use the Software Programs only for its intended purpose and only in the manner intended.  In the event that the Customer violates any of the requirements of this Section, the Developer sh [Portions Omitted - included In fully Licensed Version]y to provide support 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 computers, unless the Developer [Portions Omitted - included In fully Licensed Version] and absolute discretion, that it is necessary to perform such services at the Customer’s 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 substantially [Portions Omitted - included In fully Licensed Version] with agreed specifications, and that its shall perform all development tasks in compliance with all applicable state, federal 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 [Portions Omitted - included In fully Licensed Version], 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 W [Portions Omitted - included In fully Licensed Version]ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE OR NONINFRINGEMENT UPON THE RIGHTS OF 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 [Portions Omitted - included In fully Licensed Version] DELIVERABLES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS  AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS A [Portions Omitted - included In fully Licensed Version]T AND FORMED THE  BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. 

 

8.4                 Limitation On Damages.  [Portions Omitted - included In fully Licensed Version]ges that Customer has been fully advised that such damages are possible.  Under no circumstances will damages assessed against Developer exceed the development 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 Customer hereby indemnifies and holds the Developer harmless from and against any and all claims, of every nature or type, that may be brought 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; [Portions Omitted - included In fully Licensed Version]se to use the Software Program contained herein shall be perpetual unless sooner terminated pursuant to the terms 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 herein; [Portions Omitted - included In fully Licensed Version]s against the Developer based upon the performance or lack of performance of the Developer’s development 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 invoice to the C [Portions Omitted - included In fully Licensed Version] 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 reasonable efforts t [Portions Omitted - included In fully Licensed Version]emed 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 transmitted via Email a [Portions Omitted - included In fully Licensed Version]d 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 Serv [Portions Omitted - included In fully Licensed Version]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 shall have no right to direct or control the details of the Developer’s work. Developer shall not receive any fringe benefits or other perquisites that the Customer may provide to its employees and Developer agrees to be responsible for its own business overhead and costs of doin [Portions Omitted - included In fully Licensed Version]r 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 pa [Portions Omitted - included In fully Licensed Version]vice fees payable to the Developer hereunder. Developer hereby indemnifies and holds the customer harmless any obligation 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 [Portions Omitted - included In fully Licensed Version] the rules of the American Arbitration Association (the "Rules"). The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in 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 Agreement. This A [Portions Omitted - included In fully Licensed Version]ty 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.