Software Development Agreement
1. Development Services. Customer engages Developer, and Developer agrees to perform services for Customer to develop, deliver, support and maintain the Software in accordance with the terms and conditions of this agreement.
2. Duties and Responsibilities
2.1. Specifications. Customer shall define the Specifications, Deliverables, and Schedules [, with input from Developer] (the "Specifications").
2.2. Development. Developer shall design, develop, and implement the Software in accordance with the Specifications.
2.3. Delivery. Developer shall [use commercially reasonable efforts to] deliver to Customer, as outlined in Statement of Work, the Software, in accordance with the Specifications.
3.1. Acceptance Period. Customer will have 15 days following the date of [delivery OR installation] to assess and test the Software.
3.2. Completion. If Developer [, in the sole opinion of Customer,] delivers the Software in accordance with the Specifications, Deliverables, or Schedule, then Developer shall be deemed to have completed its delivery obligations.
3.3. Rejection. If Developer [, in the sole opinion of Customer,] fails to deliver the Software in accordance with the Specifications, Deliverables, or Schedule, then:
(a) Notification: Customer shall detail in writing its grounds for rejection; and
(b) Rectification. Developer shall [promptly OR use its best efforts to] correct the Software and upon delivery of such correction, the process of acceptance, completion, and rejection shall restart.
(c) Continued Failure. If the Developer's corrections[, in the sole opinion of Customer,] fails to deliver the Software in accordance with the Specifications, Deliverables, or Schedule, then Customer may elect to:
(i) terminate the agreement, or
(ii) adjust the Specifications, Deliverables, or Schedule.
4. Changes Orders
4.1. Changes. Customer may request changes to the Specifications, Deliverables, or Schedules.
4.2. Additional Time or Expense. If the proposed change will, in the reasonable opinion of Developer, require a delay in delivery of the Software or would result in additional expense, then:
(a) Customer and Developer shall confer; and
(b) Customer may elect to either:
(i) withdraw its proposed change, or
(ii) require Developer to deliver the Software with the proposed change, subject to the delay and/or additional expense.
If Developer cannot or chooses not to accept the change order, then Customer may elect to terminate the agreement. The customer is still responsible for the full payment of all fees to the developer based on the original agreed scope.
5. Assignment of Rights. Upon acceptance and payment of all compensation due to Developer, Developer grants the rights to the use of the software to the customer without limitation.
6.1. Training Scope. Developer shall provide Customer with 2 hours of training on the use of the Software to the Client. The client is responsible for the training of end users and adoption of the software. This training does not include any training on the actual development of the software.
6.2. Training Dates and Locations. The training will be conducted on such dates and locations as the parties may agree.
6.3. Training Costs. Additional training shall be provided at the rate of $125.00 per hour plus travel and other incurred expenses.
7. Support and Maintenance
7.1. Initial Period. Developer shall provide Customer with support and maintenance services for an additional agreed amount detailed in SOW.
7.2. Renewal Periods. Licensee may renew its maintenance and support subscription after the initial subscription period of one year at then-current rates unless the Customer provides cancellation of subscription 30 days prior to the expiration date.
8. Development Fees [and Expenses]
8.1. Development Costs. Customer shall pay Developer:
(a) Based on the schedule of delivery stated in invoice schedule of the SOW. Failure to comply with the payment schedule removes the license from the Licensee 30 days after the payment due date.
8.2. Expenses. [Subject to Customer's prior approval, ]Customer will reimburse Developer for all reasonable expenses incurred by Developer during the development of the Software.
8.3. Payment. The Development, Software license fees [and Maintenance and Support fees] will be due and payable in full to Licensor no later than 15 days after the date of Licensor's invoice.
(a) Terms. Payment for each phase/period of work will be billed in advance and is due before the start of the phase.
8.4. Late Fees. Any amounts not paid within 45 days will be subject to interest charges of 3% of the overdue amount per month, or the highest rate allowable under law, whichever is less and a $100 processing fee.
9. Term. This Agreement shall commence upon the signing of the SOW and continue until all of the obligations of the parties have been performed or until earlier terminated in accordance with this Agreement.
10. Representations and Warranties
10.1. Ownership Rights. Developer represents and warrants that it [is the sole author of the Software and ] has, and will have, right to assign rights to the Software to Customer in accordance with the terms of this Agreement. Customer acknowledges that the developer may use third party software in creating the software. All licensing of the third party software is the sole responsibility of the customer.
10.2. Limited Warranty
(a) Limited Media Warranty. Licensor warrants for a period of 30 days following delivery of the Software that the media upon which the Software is delivered are free from defects in materials and workmanship under normal use. [Licensor's sole obligation shall be to provide Licensee with a performing copy of the Software within a reasonable time following Licensee's notification to Licensor of the defect.
(b) Limited Support Warranty. Licensor warrants for a period of 1 year following performance of the service that its Maintenance Support Services will be performed consistent with generally accepted industry standards at the rate specified in the SOW.
(c) Performance Warranty. Licensor warrants that for a period of 45 days commencing upon date of delivery or installation, whichever is earlier, that when operated in accordance with the documentation and other instructions provided by Licensor, the Software will perform substantially in accordance with the functional specifications set forth in the documentation.
10.3. Warranty Disclaimer. [Licensor] disclaims to the [fullest] extent authorized by law any and all other warranties, whether express or implied, including, without limitation, any implied warranties of [title, non-infringement, quiet enjoyment, integration,] merchantability or fitness for a particular purpose.
11.1. Independent Contractor. Developer is an independent contractor and is not an employee or agent of Customer.
11.2. No Partnership. Nothing in this Agreement creates a partnership or joint venture between the parties.
11.3. Delays. Any delays incurred by the developer due to the deliverables predetermined to be the responsibility of the customer does not account towards the delivery date. The Developer may choose to terminate the contract without any penalty if the delays are deemed unreasonable [more than 30 days]. The Developer may charge an additional fee of $125.00 per hour per developer for the time waiting.
12.1. Confidentiality. During the term of this Agreement and for 60 days afterward, Developer [will keep all Confidential Information confidential OR will use reasonable care to prevent the unauthorized use or dissemination of the Confidential Information].
12.2. Source Code Escrow
(a) Delivery of Object Code. Customer agrees that the Software developed under this Agreement shall be delivered using an online Git based source code repository such as Github.
13. Rights and Remedies
(a) Termination for Cause. If either Party (i) commits a material breach or material default in the performance or observance of any of its obligations under this Agreement, and (ii) such breach or default continues for a period of 30 days after delivery by the other Party of written notice reasonably detailing such breach or default, then (iii) the non-breaching or non-defaulting Party shall have the right to terminate this Agreement, with immediate effect, by giving written notice to the breaching or defaulting Party..
(b) Effect of Termination. In the event of the termination of this Agreement: (i) the license granted to Licensee in this Agreement will terminate; and (ii) Licensee shall cease all use of the Software and destroy or erase all copies of the Software in Licensee's possession or control.
13.2. Indemnification. Licensor shall defend, indemnify and hold harmless the Licensee, from and against all costs, charges and expenses (including attorneys' fees) arising from any third party claim, action, suit, or proceeding against any action by a third party against Licensee that is based on any claim that the Software [or any services performed under this Agreement] infringe a patent, copyright or other proprietary right or violate a trade secret.
13.3. Limitation of Liabilities. In no event will Licensor be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the software, the software content or this agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if Licensor has been advised of the possibility of such damages.
14. General Provisions
14.1. Entire Agreement. This Agreement constitute the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
14.2. Amendment. This Agreement may be amended only by a written instrument signed by the Parties.
14.3. Assignment. Neither Party may not assign this Agreement or any of its rights under this Agreement without the prior written consent of Licensor and any attempted assignment without such consent shall be void.
(a) Form of Notice. All notices, requests, claims, demands and other communications between the parties shall be in writing.
(b) Method of Notice. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile [or (v) by electronic mail] to the address of the party specified in this Agreement or such other address as either party may specify in writing.
(c) Receipt of Notice. All notices shall be effective upon (i) receipt by the party to which notice is given, or (ii) on the [fifth (5th)] day following mailing, whichever occurs first.
14.5. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
14.7. Waiver. Failure or neglect by either party to enforce at any time any of the provisions of this licence Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
14.8. Headings. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs.