Close Window

SOFTWARE DEVELOPMENT AGREEMENT

Master Development Agreement Retaining Developer For Various Projects

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. The Customer from time to time wishes to develop certain Software programs, programming material and other items within the expertise of the Developer and wishes to retain the services of the Developer to assist in the development, creation, testing and delivery of such materials.

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 Requests For Services/Work Orders. Services that are subject to this Agreement shall be as set forth in written Work Orders and shall be separately agreed to by the parties. In the event that [Portions Omitted - included In fully Licensed Version]t shall describe the desired services in detail .

1.2 Work Order Requests Subject To Agreement. Only su [Portions Omitted - included In fully Licensed Version]ding such Work Orders and the scope of services involved in any request. Upon agreement of the parties concerning the terms and scope of work involved in a Work Order, such Work Order shall be executed by each party and shall become an exhibit to this Agreement.

1.3 Commencement of Project Work. Upon execution by both [Portions Omitted - included In fully Licensed Version]f the Work Order Request, the Developer is authorized to commence initial project work, subject to final agreement as to Specifications and Plan of Development as described below.

ARTICLE II

DEVELOPMENT COORDINATION

2.1 Appointment of Development Coordinators. Each party shall appoint a single individual from its respective organization, which shall be reasonably acceptable to the other party, to act as Development Coordinator to represent the interests of the party in connection with the Development process. The Development C [Portions Omitted - included In fully Licensed Version]ment process and the coordination of activities between the parties. Promptly on appointment, the Development Coordinators shall establish contact and mutually develop guidelines for accomplishment of the development goals.

2.2 Functions of Development Coordinators. The Development Coordinators shall be the primary non-technical contact between the parties relative to development projects. The Development [Portions Omitted - included In fully Licensed Version]ntact relating to the progress made and decisions to be made with respect to the development projects. All notices between the parties and Work Order Requests shall be presented to the Development Coordinators. All administrative matters relating to the development projects shall be communicated through the Development Coordinators. E [Portions Omitted - included In fully Licensed Version]nput of management and others who are necessary for the achievement of project goals.

2.3 Technical Coordinator. Each party shall appoint a single individual with a technical background from its respective organization, which shall be reasonably acceptable to the other part [Portions Omitted - included In fully Licensed Version]oordinators of the parties shall communicate with each other on a regular 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 the parties.

2.4 Specifications and Plan of Development. Following issuance of such Work Order Request, the parties shall consult to further define the precise scope of work required and to develop project specifica [Portions Omitted - included In fully Licensed Version]t where necessary to develop detailed final Specifications for the project. The Development Coordinators shall involve the Technical Coordinators from each organization where necessary. Such Specifications shall be memorialized in writing and shall not define the project until executed by both parties.

2.5 Plan of Development. The Plan of Development shall be jointly created by the Development Coordinators with input from their respective Technical Coordinators. The Plan of Development shall include a description of the various steps involved in the development process, creation of various development phases with a descript [Portions Omitted - included In fully Licensed Version] tasks for each phase and a listing of items and input to be provided by the Customer for each phase, definition of the Deliverables to be provided at the end of each phase and upon completion of the development process, and such other matters deemed necessary or prudent by the Development Coordinators given the nature of the specific development project. The Development Corrdinators shall periodically review the Plan of Developme [Portions Omitted - included In fully Licensed Version] during the project and discuss any necessary revisions as the project moves forward.

2.6 Failure To Agree On Specifications. In the event that the parties cannot agree on Specifications within ______ (____) days after execution by the last party to sign the Work Order Request, [Portions Omitted - included In fully Licensed Version] rates for programmers who have worked on the development project.

2.7 Changes To Work Order Requests and Specifications. The parties expect that there will be some changes to the Work Order Requests and Specifications after acceptance by both parties. Requests for changes shall be proposed by the Development Coordinators or the Technical Coordinators, but shall not be effective w [Portions Omitted - included In fully Licensed Version]e 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 Work Order Requests provided that Developer has [Portions Omitted - included In fully Licensed Version] to meet any increased demands, Developer has ample expertise to fulfill the technical requirements of such changes, reasonable adjustments are made to project sche [Portions Omitted - included In fully Licensed Version]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.

2.8 Project Timetable and Scheduling. [Portions Omitted - included In fully Licensed Version]

ARTICLE III

DEVELOPMENT COSTS AND FEES

3.1 Project Pricing. The Work Order that is finally agreed to by the parties shall establish the pricing methodology for the project and the manner of payment of all such compensation an [Portions Omitted - included In fully Licensed Version]ng and upon agreement as to changes the parties shall in good faith adjust the pricing where appropriate.

3.2 Invoicing For Services and Payment of Invoices. The De [Portions Omitted - included In fully Licensed Version]eceipt of any invoice unless the Customer disputes the invoice in good faith. Upon default in payment, Developer is authorized to suspend work under the Work Order Request 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 the Work Order Request by written notice to the Customer. Upon such termination, Developer shall have no f [Portions Omitted - included In fully Licensed Version]ayable 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 under such Work Order Request.

3.3 Fixed Price Payment. A Work Order Request may call for a [Portions Omitted - included In fully Licensed Version]for a defined project scope. In such event, Developer shall be paid an amount equal to ____% of such amount prior to commencing work on the project. The Development Coordinators shall establish a reasonable schedule of payments based upon achievement of various project milestones.

3.4 Time Based Payment. Where the Work Order Request provides for payment at an hourly rate, such hourly rate shall be calculated based upon the Developer’s fee schedule for it’s various pro [Portions Omitted - included In fully Licensed Version]cture during the term of the project no sooner than ____ days after written notice of such increases to the Customer, provided that the increases are not specific to the project but have application to the Developer’s entire organization.

3.5 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 be due and payable upon invoice to Customer. Alternatively, Developer may request that such expenses be paid directly by the Customer or paid in advance to [Portions Omitted - included In fully Licensed Version]may include such items as (I) postal charges, federal express, facsimile charges, long distance telephone charges, and other costs of project specific communications, (ii) costs of purchasing or lice [Portions Omitted - included In fully Licensed Version]phics, 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) travel expenses, (v) costs of acquir [Portions Omitted - included In fully Licensed Version]arties in the Work Order Request. Expense items shall not include items that a within the normal overhead and operating expenses of the Developer.

3.6 Project Deposit. Upon acceptance of the Work Order Request, unless otherwise agreed by the parties in the relevant Work Order Request, the Customer shall deliver to the Developer a [Portions Omitted - included In fully Licensed Version] amount equal to %______ of the total estimated project costs. Such deposit shall be non-refundable to the Customer and shall be deemed earned by the Developer upon receipt thereof. The Developer [Portions Omitted - included In fully Licensed Version] the deposit to the last payment due by the Customer under the relevant Work Order Request.

3.7 Verification Records. Developer shall maintain accounting, time, and other records as are necessary to verify any amount invoiced under any Work Order Request. Upon any dispute of any invoice, [Portions Omitted - included In fully Licensed Version] provide backup records to support the invoice that is questioned if applicable.

ARTICLE IV

COMPLETION AND ACCEPTANCE

4.1 Delivery. Upon completion of the product described in the Work Order Request, Developer shall notify the Development Coordinator for the Customer. The Development Coordinators for each party [Portions Omitted - included In fully Licensed Version] arrange the logistics 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 party, with input and involvement from the Technical Coordinators for each party, shall, during the course if the [Portions Omitted - included In fully Licensed Version]

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 te [Portions Omitted - included In fully Licensed Version]ocedures 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 shall identify with s [Portions Omitted - included In fully Licensed Version]ithin _____ (____) days following delivery, the Customer shall be deemed to 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 Customer Ownership. Upon payment in full of all amoun [Portions Omitted - included In fully Licensed Version]ghts, related to the Deliverables, (ii) all works created by the Developer shall be deemed “works made 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 own [Portions Omitted - included In fully Licensed Version]nd confirm the Customer’s ownership of the Deliverables.

5.2 Pre-Existing Works. In the event that the Deliverables include a [Portions Omitted - included In fully Licensed Version]rties to grant, a perpetual, 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 creation of Deliverables. The Developer agrees that all aspects of the Deliverables shall be original works of creation and shall not use, in whole [Portions Omitted - included In fully Licensed Version]icense 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 enjoyment of the Deliverables, except where specifically agreed in writing by the Customer.

5.4 Inventions. The parties intend that all inventions and creations developed by Developer in the course of the development project, conditioned on full and complete payment of all a [Portions Omitted - included In fully Licensed Version]ventions shall mean and include any and all ideas, concepts, discoveries, designs, improvements, and creations, regardless of whether the same are patentable or protected under any Federal of State law, r [Portions Omitted - included In fully Licensed Version], 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

CONFIDENTIALITY

Customer shall not, at any time, disclose or disseminate the trade secrets embodied in the Subject Programs or any supporting program documentation to any other person, firm, organization, [Portions Omitted - included In fully Licensed Version] to obtain access thereto consistent with Customer's rights under this Agreement. Under no circumstances may Customer modify, reverse compile, or reverse assemble the object code contained within the Subject Programs. Under no circumstances may Customer disclose or disseminate such trade secrets to any competitor of Developer. [Portions Omitted - included In fully Licensed Version]evote Customer' s best efforts to ensure that all persons afforded access to the Subject Programs and all supporting program documentation protect Developer's trade secrets against unauthorized use, dissemination, or disclosure.

ARTICLE VII

EMPLOYEE AND CONTRACTORS

7.1 Independent Contractors. Developer shall use only bona fide employees to conduct all aspects of the development project, unless independent contractors are specifically co [Portions Omitted - included In fully Licensed Version]om 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 Contractors shall also be required to execute a confidentiality agreement in favor of the Customer.

7.2 Employees. Developer shall enter and mai [Portions Omitted - included In fully Licensed Version]d in the course of the 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 VIII

REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER

8.1 Performance. Developer represents and warrants that service under any Work Order Request shall be performed in a workmanlike manner consistent with industry standards, that all De [Portions Omitted - included In fully Licensed Version]pliance with all applicable state, federal and local laws, rules and regulations.

8.2 Title. Developer represents and warrants that upon payment in full of all amount due hereunder, that the Customer shall own the Deliverables, free and clear of all liens and encumbrances, a [Portions Omitted - included In fully Licensed Version]nd that the Customer shall have all proprietary rights in the Deliverables and the right to secure copyrights and other proprietary rights.

8.3 Pre-Existing Works. Developer represents and war [Portions Omitted - included In fully Licensed Version]se and pre-existing works, whether developed by the Developer or by and other party, which are used in connection with the Deliverables.

8.4 Warranty Disclaimers. Other than as specifically set forth in this Agreement, THE DELIVERABLES ARE DELIVERED TO CUSTOMER ON AN "AS IS" BASIS, WITHOUT ANY WARRA [Portions Omitted - included In fully Licensed Version]LITY 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 OPERAT [Portions Omitted - included In fully Licensed Version]IMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS.

8.5 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 bee [Portions Omitted - included In fully Licensed Version]elopment fee (exclusive of costs and expenses) actually paid to the Developer for the specific Work Order Request out of which potential damages arose.

8.6 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 [Portions Omitted - included In fully Licensed Version] 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. Upon terminatio [Portions Omitted - included In fully Licensed Version]f the pending development project, unless any termination is specifically intended to terminate the Work Order Request that is pending at the time of termination.

9.2 Termination Without Cause. Either party may terminate this Agreement, with or without cause, by giving ____(_____) days prior written notice of termination to the other party.

9.3 Termination of Work Order Requests. Customer may terminate any Work Order Request, with or without cause, by giving Developer _____(_____) days written notice of termination. The Work Order Request shall terminate upon the expiration of such notice period. Upon any early termination of a Work Order Request, the Developer shall immediately cease work on the relevant project and shall issue an invoice to the Customer for all work performed through the [Portions Omitted - included In fully Licensed Version]of final payment, the Developer shall cause all Deliverables, whether fully or partially completed, to be delivered to the Customer and Developer shall execute assignments or such other documentation reasonably requested by the Customer in order to vest full title to the Deliverables in the Customer.

9.4 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 here [Portions Omitted - included In fully Licensed Version]es.

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 Agreem [Portions Omitted - included In fully Licensed Version]perform in accordance with this Agreement notwithstanding such conditions. The delayed party's time for performance shall 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 transmitted via Email at the Email addresses listed below, except for any notice of termination of this Agreement which shall be in writing and sent by Un [Portions Omitted - included In fully Licensed Version]ate 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 delegat [Portions Omitted - included In fully Licensed Version]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 doing bus [Portions Omitted - included In fully Licensed Version]suant 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 withhold taxes from service fees payable to the Developer hereunder. Developer hereby indemnifies and holds the customer harmless any obligation that ma [Portions Omitted - included In fully Licensed Version]osed 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 [Portions Omitted - included In fully Licensed Version]tent 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, agreement [Portions Omitted - included In fully Licensed Version] Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability 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.

WORK ORDER REQUEST FORM

This Work Order Request is presented on this _____ day of ___________________, 20___ pursuant to that certain Development Agreement dated the ____ day of _________________, 20___ by and between _____________________________________ and _____________________________. This Work Order Request is intended to define the terms applicable to the development project defined below. The general terms of work shall be as set forth in the Development Agreement.

DESCRIPTION OF PROJECT

[Portions Omitted - included In fully Licensed Version]

DELIVERABLES

[Define the deliverables that are to result from the project]

DEVELOPMENT FEE

[ [Portions Omitted - included In fully Licensed Version]

EXPENSE REIMBURSEMENT

[Portions Omitted - included In fully Licensed Version]

PHASES OF DEVELOPMENT AND TIMETABLE

ACCEPTANCE TESTING PROCESS APPLICABLE TO PROJECT

CUSTOMER DELIVERABLES

[Define items that the Customer must deliver in order to further the project and specify delivery times]

DEVELOPMENT COORDINATORS

TECHNICAL COORDINATORS