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on this site. If you do not agree to the above terms, please do not proceed.
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CUSTOM SOFTWARE
DEVELOPMENT AGREEMENT
1. Identification of the Parties: This
Agreement is made between _______________ [NAME OF CUSTOMER] (the
"Customer") with a principal place of business at _______________
[ADDRESS] and _______________ [NAME OF SOFTWARE DEVELOPER] (the "Developer")
with a principal place of business at _______________ [ADDRESS].
2. Purpose of Agreement: Customer desires to
retain Developer as an independent contractor to develop the computer software
(the "Software") described in the Functional Specifications contained
in Exhibit ___ attached to and made part of this Agreement. Developer is ready,
willing and able to undertake the development of the Software and agrees to do
so under the terms and conditions set forth in this Agreement. Accordingly, the
parties agree as follows:
3. Preparation of Development Plan:
Developer shall prepare a development plan ("Development Plan") for
the Software, satisfying the requirements set forth in the Functional
Specifications. The Development Plan shall include:
(a) detailed Specifications for the
Software;
(b) a listing of all items to be delivered
to Customer under this Agreement ("Deliverables");
(c) a delivery schedule containing a
delivery date for each Deliverable; and
[OPTIONAL: INCLUDE IF DEVELOPER IS PAID
FIXED PRICE FOR PROJECT:] (d) a payment schedule setting forth the amount and
time of Developer's compensation. [END OPTION]
Developer shall deliver the Development Plan
to Customer by [DEVELOPMENT PLAN DEADLINE]. Customer shall have [NUMBER OF DAYS
TO REVIEW] days to review the Development Plan. Upon approval of the
Development Plan by Customer, it will be marked as Exhibit __ and will be
deemed by both parties to have become a part of this Agreement and will be
incorporated by reference. Developer shall then commence development of
Software that will substantially conform to the requirements set forth in the
Development Plan.
If the Development Plan is in Customer's
reasonable judgment unsatisfactory in any material respect, Customer shall
prepare a detailed written description of the objections. Customer shall
deliver such objections to Developer within [NUMBER OF DAYS TO OBJECT] days of
receipt of the Development Plan. Developer shall then have [NUMBER OF DAYS TO
MODIFY] days to modify the Development Plan to respond to Customer's
objections. Customer shall have [NUMBER OF DAYS TO RE-REVIEW] days to review
the modified Development Plan. If Customer deems the modified Development Plan
to be unacceptable, Customer has the option of terminating this Agreement upon
written notice to Developer or permitting Developer to modify the Development
Plan again under the procedure outlined in this paragraph. If this Agreement is
terminated, the obligations of both parties under it shall end except for
Customer's obligation to pay Developer all sums due for preparing the
Development Plan and the ongoing obligations of confidentiality set forth in
the provision of this Agreement entitled "Confidentiality."
[OPTIONAL; FOR USE IF DEVELOPER IS NOT PAID
ON HOURLY BASIS:] Payment for Development Plan: If the Development Plan is not
accepted by Customer and Customer terminates this Agreement, Developer shall be
entitled to compensation on a time and materials basis at an hourly rate of
$[HOURLY RATE] plus expenses to the date of termination. Developer shall submit
an invoice detailing its time and expenses preparing the Development Plan. If
the invoice amount is less than the amounts paid to Developer prior to
termination, Developer shall promptly return the excess to Customer. If the invoice
amount exceeds the amounts paid to Developer prior to termination, Customer
shall promptly pay Developer the difference. [OPTIONAL: "However,
Developer's total compensation for preparing the Development Plan shall not
exceed $[AMOUNT]."] [END OPTION]
4. Payment:
[ALTERNATIVE 1 (TIME AND MATERIALS
AGREEMENT):] Developer shall be compensated at the rate of $[RATE] per hour [OR
"day," "week," "month"]. Payment will be made
within [NUMBER OF DAYS] days of Developer's submission of an invoice for work
completed. [OPTIONAL: "Unless otherwise agreed upon in writing by
Customer, Customer's maximum
liability for all services performed during the term of this
Agreement shall not exceed $[MAXIMUM AMOUNT]."]
[ALTERNATIVE 2 (FIXED PRICE AGREEMENT):] The
total contract price shall be set forth in the Development Plan. Customer shall
pay the Developer the sum of $[INITIAL AMOUNT] upon execution of this Agreement
and the sum of $[AMOUNT IF PLAN APPROVED] upon Customer's approval of the
Development Plan. The remainder of the contract price shall be payable in
installments according to the payment schedule to be included in the
Development Plan.
Each installment shall be payable upon
completion of each project phase by Developer and acceptance by Customer in
accordance with the provision of this Agreement entitled "Acceptance
Testing of Software." [END ALTERNATIVE 2]
5. Payment of Developer's Costs:
[ALTERNATIVE 1--FULL REIMBURSEMENT:]
Customer shall reimburse Developer for all out-of-pocket expenses incurred by
Developer in performing services under this Agreement. Such expenses include,
but are not limited, to:
(a) all communications charges
(b) costs for providing conversion services
for converting Customer's database
(c) media costs;
(d) travel expenses other than normal
commuting, including airfares, rental vehicles, and highway mileage in company
or personal vehicles at __ cents per mile; and
(e)
other expenses resulting from the work performed under this Agreement.
Developer shall submit an itemized statement of Developer's
expenses. Customer shall pay Developer within 30 days from the date of each
statement. [END ALTERNATIVE 1.]
[ALTERNATIVE 2--PARTIAL REIMBURSEMENT]
Customer shall reimburse Developer for all reasonable travel and living
expenses necessarily incurred by Developer while away from Developer's regular
place of business and engaged in the
performance of services under this Agreement. [END
ALTERNATIVE 2]
6. Late Fees:
Late payments by Customer shall be subject
to late penalty fees of _____% per month from the due date until the amount is
paid.
[OPTIONAL:]
7. Materials
Customer shall make available to Developer,
at Customer's expense, the following materials, facilities and equipment:
________________________________________ [LIST]. These items will be provided
to Customer by ____ [DATE].[END OF OPTION]
8. Changes in Project Scope:
If at any time following acceptance of the
Development Plan by Customer, Customer should desire a change in Developer's
performance under this Agreement that will alter or amend the Specifications or
other elements of the Development Plan, Customer shall submit to Developer a
written proposal specifying the desired changes.
Developer will evaluate each such proposal
at its standard rates and charges. Developer shall submit to Customer a written
response to each such proposal within 10 working days following receipt
thereof. Developer's written response shall include a statement of the
availability of Developer's personnel and resources, as well as any impact the
proposed changes will have on the contract price, delivery dates or warranty
provisions of this Agreement.
Changes to the Development Plan shall be
evidenced by a "Development Plan Modification Agreement." The
Development Plan Modification Agreement shall amend the Development Plan
appropriately to incorporate the desired changes and acknowledge any effect of
such changes on the provisions of this Agreement. The Development Plan
Modification Agreement shall be signed by authorized representatives of
Customer and Developer, whereupon Developer shall commence performance in
accordance with it.
Should Developer not approve the Development
Plan Modification Agreement as written, Developer will so notify Customer
within 10 working days of Developer's receipt of the Development Plan
Modification Agreement. Developer shall not be obligated to perform any
services beyond those called for in the Development Plan prior to its approval
of the Development Plan Modification Agreement.
For purposes of this Agreement, each
Development Plan Modification Agreement duly authorized in writing by Customer
and Developer shall be deemed incorporated into and made part of this
Agreement. Each such Development Plan Modification Agreement shall constitute a
formal change to this Agreement adjusting fees and completion dates as finally
agreed upon.
9. Delays:
Developer shall use all reasonable efforts
to deliver the Software on schedule. However, at its option, Developer can
extend the due date for any Deliverable by giving written notice to Customer.
The total of all such extensions shall not exceed ___ [NUMBER] of days.
Any delay or nonperformance of any provision
of this Agreement caused by conditions beyond the reasonable control of the
performing party shall not constitute a breach of this Agreement, provided that
the delayed party has taken reasonable measures to notify the other of the
delay in writing. 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. Failure of subcontractors and
inability to obtain materials shall not be considered a condition beyond a
party’s reasonable control.
10. Acceptance Testing of Software:
[ALTERNATIVE 1 (PROVISION FOR MULTI-PHASE
PROJECTS):] Immediately upon completion of each development phase set forth in
the Development Plan's delivery schedule, Developer shall deliver and install
the Software and shall
deliver all documentation and other materials required to be
provided in accordance with the delivery schedule. Customer shall have [NUMBER
OF TESTING DAYS] days from the delivery of the Software to inspect, test and
evaluate it to determine whether the Software satisfies the acceptance criteria
in accordance with procedures set forth in the Development Plan, or as
established by Developer and approved by Customer prior to testing.
If the Software does not satisfy the
acceptance criteria, Customer shall give Developer written notice stating why
the Software is unacceptable. Developer shall have 30 days from the receipt of
such notice to correct the deficiencies. Customer shall then have 30 days to inspect,
test and reevaluate the Software. If the Software still does not satisfy the
acceptance criteria, Customer shall have the option of either: (1) repeating
the procedure set forth above, or (2) terminating this Agreement pursuant to
the section of this Agreement entitled "Termination." If Customer
does not give written notice to Developer within the initial 30-day inspection,
testing and evaluation period or any extension of that period, that the
Software does not satisfy the acceptance criteria, Customer shall be deemed to
have accepted the Software upon expiration of such period.
Upon completion of the final development
phase set out in the Development Plan, acceptance testing shall be performed on
the Software in its entirety to determine whether the Software satisfies the
acceptance criteria and operates with internal consistency. Customer shall have
[NUMBER OF TESTING DAYS FOR FINAL PRODUCT] days to perform such tests. If the
completed Software does not satisfy the acceptance criteria, the parties shall
follow the acceptance procedures described in the preceding paragraph
[OPTIONAL: except that the time periods for corrections, inspection
reevaluation and notice shall be increased to ___ [NUMBER] days] [END OF
OPTION].
[INCLUDE IN FIXED PRICE CONTRACTS: If and
when the acceptance tests establish the Software delivered upon completion of
any phase of development complies with the acceptance criteria, Customer shall
promptly notify Developer that it accepts the delivered Software.] [END
ALTERNATIVE 1]
[ALTERNATIVE 2 (ALTERNATE ACCEPTANCE TESTING
PROVISION):] Customer shall have 30 days from the date of delivery of the
Software in final form to inspect, test and evaluate it to determine whether
the Software satisfies the acceptance criteria in accordance with procedures
set forth in the Development Plan, or as established by Developer and approved
by Customer prior to testing.
If the Software does not satisfy the
acceptance criteria, Customer shall give Developer written notice stating why
the Software is unacceptable. Developer shall have 30 days from the receipt of
such notice to correct the deficiencies. Customer shall then have 30 days to
inspect, test and evaluate the Software. If the Software still does not satisfy
the acceptance criteria, Customer shall have the option of either (1) repeating
the procedure set forth above, or (2) terminating this Agreement pursuant to
the section of this Agreement entitled "Termination." If Customer
does not give written notice to Developer within the initial 30-day inspection,
testing and evaluation period or any extension of that period, that the
Software does not satisfy the acceptance criteria, Customer shall be deemed to
have accepted the Software upon expiration of such period. [END ALTERNATIVE 2]
11. [OPTIONAL:] Training: Developer shall
provide [NUMBER OF TRAINING DAYS] days of training in the use of the Software
by at least one (but not more than [MAXIMUM NUMBER OF TRAINERS]) qualified
Developer personnel ("trainers"). The training will be conducted on
such dates and locations as the parties may agree.
Customer will be responsible for all costs
and expenses of all Customer's trainees, including room, board, transportation,
salary, insurance and other benefits, and other expenses while attending the
training.
[OPTIONAL:] Customer shall pay Developer the
sum of $[AMOUNT] for each [HOUR/DAY] of training by each trainer, plus each
trainer's travel expenses. [END OPTION 2]
[OPTIONAL:] 12. Maintenance of Software:
Beginning on the first day of the first month following expiration of the
warranty period set forth in the section of this Agreement entitled
"Warranties," Developer shall provide the following error-correction
and support services:
(a) telephone hot-line support during
Developer's normal days and hours of business operation. Such support shall
include consultation on the operation and utilization of the Software. Customer
shall be responsible for all telephone equipment and communication charges
related to such support; and
(b) error correction services, consisting of
Developer using all reasonable efforts to design, code and implement
programming changes to the Software, and modifications to the documentation, to
correct reproducible errors therein so that the Software is brought into
substantial conformance with the Specifications.
Payment for Maintenance: Customer shall pay
Developer for error-correction and support services the annual sum of
$[MAINTENANCE AMOUNT], payable in quarterly installments beginning on the first
day of the first month following expiration of any warranty period. Three years
after the date of Customer's final acceptance of the Software, Developer shall
be entitled to increases in the maintenance fee upon at least 10 days' prior
written notice to Customer.
Customer's Role in Maintenance: The
provision of the error-correction and support services described above shall be
expressly contingent upon Customer promptly reporting any errors in the
Software or related documentation to Developer in writing and not modifying the
Software without Developer's written consent.
Term of Support: Subject to timely payment
by Customer of the maintenance fees, Developer shall offer the maintenance
described above for a minimum of [NUMBER OF YEARS] years after completion of
the development work under this Agreement.
Customer Termination of Maintenance:
Customer may discontinue the maintenance services described above upon not less
than 90 days' written notice to Developer.
13. Ownership of Software:
[ALTERNATIVE 1 (OWNERSHIP BY CUSTOMER):]
Developer assigns to Customer its entire right, title and interest in anything
created or developed by Developer for Customer under this Agreement ("Work
Product") including all
patents, copyrights, trade secrets and other proprietary
rights. This assignment is conditioned upon full payment of the compensation
due Developer under this Agreement.
Developer shall execute and aid in the preparation of any
documents necessary to secure any copyright, patent, or other intellectual
property rights in the Work Product at no charge to client. However, Customer
shall reimburse Developer for reasonable out-of-pocket expenses.
[OPTIONAL:] Customer grants to Developer a
nonexclusive, [CHOOSE ONE: "irrevocable license" OR "license for
the term of [NUMBER OF YEARS] years"] to use the Work Product. [ADD ANY
PAYMENT PROVISIONS OR OTHER RESTRICTIONS] [END ALTERNATIVE 1]
[ALTERNATIVE 2 (OWNERSHIP BY DEVELOPER WITH
EXCLUSIVE LICENSE TO CUSTOMER):] Developer shall retain all copyright, patent,
trade secret and other intellectual property rights Developer may have in
anything created or developed by Developer for Customer under this Agreement
("Work Product"). Developer grants Customer a nontransferable license
to use the Work Product. The license is conditioned upon full payment of the
compensation due Developer under this Agreement.
The license shall be exclusive in [NAME TERRITORIES, SUCH AS
"the United States"] for a period of [TIME PERIOD] following
acceptance by Customer of the Software as set forth in this Agreement. The
license shall automatically revert to a perpetual nonexclusive license
following the period of exclusivity.
The license shall authorize Customer to:
(a) install the Software on computer systems
owned, leased or otherwise controlled by Customer;
(b) utilize the Software for its internal
data-processing purposes (but not for time-sharing or service bureau purposes);
and
(c) copy the Software only as necessary to
exercise the rights granted in this Agreement. [END ALTERNATIVE 2]
[ALTERNATIVE 3 (OWNERSHIP BY DEVELOPER WITH
NONEXCLUSIVE LICENSE TO CUSTOMER):] Developer shall retain
all copyright, patent, trade secret and other intellectual
property rights Developer may have in anything created or developed by
Developer for Customer under this Agreement ("Work Product") Subject
to payment of all compensation due under this Agreement , Developer grants
Customer a nonexclusive, nontransferable, royalty-free license to use the Work
Product.
The license shall authorize Customer to:
(a) install the Software on computer systems
owned, leased or otherwise controlled by Customer,
(b) utilize the Software for its internal
data-processing purposes (but not for time-sharing or service bureau purposes),
and
(c) copy the Software only as necessary to
exercise the rights granted in this Agreement. [END ALTERNATIVE 3]
[ALTERNATIVE 4 (JOINT OWNERSHIP):] Developer
hereby grants Customer an undivided one-half interest in the Software and
associated documentation. The Software may be freely used by either party
without accounting to the other party. Customer and Developer agree to execute
all documents reasonably necessary to legally establish their joint ownership
of the Software. [END ALTERNATIVE 4]
14. Ownership of Background Technology:
Customer acknowledges that Developer owns or holds a license to use and
sublicense various preexisting development tools, routines, subroutines and
other programs, data and materials that Developer may include in the Software developed
under this Agreement. This material shall be referred to as "Background
Technology." Developer's Background Technology includes, but is not
limited to, those items identified in Exhibit __, attached to and made a part
of this Agreement.
Developer retains all right, title and
interest, including all copyright, patent rights and trade secret rights in the
Background Technology. Subject to full payment of the consulting fees due under
this Agreement, Developer grants Customer a nonexclusive, perpetual worldwide
license to use the Background Technology in the Software developed for and
delivered to Customer under this Agreement, and all updates and revisions
thereto. However,
Customer shall make no other commercial use of the
Background Technology without Developer's written consent
[OPTIONAL:] 15. Source Code Access: Customer
agrees that the Software developed under this Agreement shall be delivered to
Customer in object code form only. Developer agrees that one copy of the source
code version of the Software and associated documentation shall be deposited
with an escrow agent specializing in software escrows to be mutually agreed
upon in writing by Developer and Customer after good faith negotiation.
Customer and Developer shall enter into a supplementary escrow agreement with
the escrow agent.
The source code shall be delivered to the
escrow agent within [NUMBER OF DAYS] days after delivery of the object code to
Customer. Thereafter, the source code version of all updates, enhancements and
modifications of the Software created by Developer on Customer's behalf, as
well as associated documentation, shall be deposited by Developer with the
escrow agent. Customer shall pay all fees necessary to establish and maintain
the escrow.
Developer hereby grants to Customer a
contingent license to receive the source code from the escrow agent and to use
the source code to support its use of the Software in machine-readable form if
one or more of the following conditions occurs:
(a) Developer, whether directly or through a
successor or affiliate, ceases to be in the software business.
(b) Developer fails to fulfill its
obligations to maintain the Software as provided in this Agreement.
(c) Developer becomes insolvent or admits
insolvency or a general inability to pay its debts as they become due.
(d) Developer files a petition for
protection under the U.S. Bankruptcy Code, or an involuntary petition is filed
against it and is not dismissed within 60 days.
[OPTIONAL:] (e) Developer comes under the
control of a competitor of Customer. [END OPTION]
The source code shall be used solely by
Customer to maintain the Software and shall be subject to every
restriction on use set forth in this Agreement. Customer
agrees not to disclose the source code to third parties except on a
need-to-know basis under an appropriate duty of confidentiality.
16. Warranties:
[ALTERNATIVE 1: DISCLAIMER OF ALL
WARRANTIES:] THE SOFTWARE FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN AS
“AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR
STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE,
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE
THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR
TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S
NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF
THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE
SOFTWARE.
[ALTERNATIVE 2--PROVIDING EXPRESS WARRANTIES
(INCLUDE AS MANY WARRANTIES AS DESIRED):]
(a) Warranty of Software Performance:
Developer warrants that for [WARRANTY PERIOD] following acceptance of the
Software by Customer, the Software will be free from material reproducible
programming errors and defects in workmanship and materials, and will
substantially conform to the Specifications in the Development Plan when
maintained and operated in accordance with Developer's instructions. If
material reproducible programming errors are discovered during the warranty
period, Developer shall promptly remedy them at no additional expense to
Customer. This warranty to Customer shall be null and void if Customer is in
default under this Agreement or if the nonconformance is due to:
(1) hardware failures due to defects, power
problems, environmental problems or any cause other than the Software itself;
(2) modification of the Software operating
systems or computer hardware by any party other than Developer; or
(3) misuse, errors or negligence of
Customer, its employees or agents in operating the Software.
Developer shall not be obligated to cure any
defect unless Customer notifies it of the existence and nature of such defect
promptly upon discovery.
(b) Warranty of Title: Developer owns and
has the right to license or convey title to the Software and documentation
covered by this Agreement. Developer will not grant any rights or licenses to
any intellectual property or technology that would conflict with Developer's
obligations under this Agreement.
(c) Warranty Against Disablement: Developer
expressly warrants that no portion of the Software contains or will contain any
protection feature designed to prevent its use. This includes, without
limitation, any computer virus, worm, software lock, drop dead device,
Trojan-horse routine, trap door, time bomb or any other codes or instructions
that may be used to access, modify, delete, damage or disable Customer's
Software or computer system. Developer further warrants that it will not impair
the operation of the Software in any way other than by order of a court of law.
(d) Warranty of Compatibility: Developer
warrants that the Software shall be compatible with the Customer's hardware and
software as set forth in the Development Plan Specifications.
THE WARRANTIES SET FORTH IN THIS AGREEMENT
ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. [END
ALTERNATIVE 2]
17. Intellectual Property Infringement
Claims:
[ALTERNATIVE 1--LIMITED WARRANTY:] Developer warrants that
Developer will not knowingly infringe on the copyright or trade secrets of any
third party in performing services under this Agreement. To the extent any
material used by Developer contains matter proprietary to a third party,
Developer shall obtain a license from the owner permitting the use of such
matter and granting Developer the right to sub-license its use. Developer will
not knowingly infringe
upon any existing patents of third parties in the
performance of services required by this Agreement, but Developer MAKES NO
WARRANTY OF NON-INFRINGEMENT of any United States or foreign patent.
[OPTIONAL--INDEMNIFICATION FOR CLAIMS:] If any third party
brings a lawsuit or proceeding against Customer based upon a claim that the
Software breaches the third party's patent, copyright or trade secrets rights,
and it is determined that such infringement has occurred, Developer shall hold
Customer harmless against any loss, damage, expense or cost, including
reasonable attorney fees, arising from the claim.
This indemnification obligation shall be effective only if:
• the third party intellectual property rights involved were
known to Developer prior to delivery of the Software
• Customer has make all payments required by this Agreement
• Customer has given prompt notice of the claim and
permitted Developer to defend, and
• the claim does not result from Customer's modification of
the Software.
To reduce or mitigate damages, Developer may at its own
expense replace the Software with a noninfringing product. [END OPTION]
[END ALTERNATIVE 1]
[ALTERNATIVE 2--"NO KNOWLEDGE"
REPRESENTATION:] Developer represents, BUT DOES NOT WARRANT, that to the best
of its knowledge the Software delivered to Customer under this Agreement will
not infringe any valid and existing intellectual property right of any third
party. [END ALTERNATIVE 2]
[ALTERNATIVE 3--NO WARRANTIES:] THE SOFTWARE FURNISHED UNDER
THIS AGREEMENT IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS AGAINST INFRINGEMENT, AND DEVELOPER SHALL NOT INDEMNIFY
CUSTOMER AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR
OTHER PROPRIETARY RIGHTS. [END ALTERNATIVE 3]
[OPTIONAL:] 18. Limitation of Developer's
Liability to Customer:
(a) In no event shall Developer be liable to
Customer for lost profits of Customer, or special or consequential damages,
even if Developer has been advised of the possibility of such damages.
(b) Developer's total liability under this
Agreement for damages, costs and expenses, regardless of cause, shall not
exceed the total amount of fees paid to Developer by Customer under this
Agreement [OPTIONAL: "or $[AMOUNT], whichever is greater"].
(c) Developer shall not be liable for any
claim or demand made against Customer by any third party except to the extent
such claim or demand relates to copyright, trade secret or other proprietary
rights, and then only as provided in the section of this Agreement entitled
Intellectual Property Infringement Claims.
(d) Customer shall indemnify Developer
against all claims, liabilities and costs, including reasonable attorney fees,
of defending any third party claim or suit arising out of the use of the
Software provided under this Agreement, other than for infringement of
intellectual property rights. Developer shall promptly notify Customer in
writing of any third party claim or suit and Customer shall have the right to
fully control the defense and any settlement of such claim or suit.
19. Confidentiality: During the term of this
Agreement and for ____ [6 months to 5] years afterward, Developer will use
reasonable care to prevent the unauthorized use or dissemination of Customer's
confidential information. Reasonable care means at least the same degree of
care Developer uses to protect its own confidential information from
unauthorized disclosure.
Confidential information is limited to information clearly
marked as confidential, or disclosed orally that is treated as confidential
when disclosed and summarized and identified as confidential in a writing
delivered to Consultant within 15 days of disclosure.
Confidential information does not include information that:
• the Developer knew before Customer disclosed it
• is or becomes public knowledge through no fault of
Consultant
• Developer obtains from sources other than Customer who owe
no duty of confidentiality to Customer, or
• Developer independently develops.
[OPTIONAL--USE WHERE DEVELOPER OWNS SOFTWARE:]
Customer acknowledges that the Software is Developer's sole and exclusive
property. Customer shall treat the Software on a confidential basis and shall
not, at any time, disclose the trade secrets embodied in the Software or
supporting documentation to any other person, firm, organization or employee
who does not need 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 in the Software. Customer
shall devote its reasonable best efforts to ensure that all persons afforded
access to the Software and supporting documentation protect Developer's trade
secrets against unauthorized use, dissemination or disclosure. [END ALTERNATIVE
2]
20. Term of Agreement: This Agreement
commences on the date it is executed and shall continue until full performance
by both parties, or until earlier terminated by one party under the terms of
this Agreement.
21. Termination of Agreement: Each party
shall have the right to terminate this Agreement by written notice to the other
if a party has materially breached any obligation herein and such breach
remains uncured for a period of 30 days after written notice of such breach is
sent to the other party.
If Developer terminates this Agreement
because of Customer's default, all of the following shall apply:
(a) Customer shall immediately cease use of
the Software.
(b) Customer shall, within 10 days of such
termination, deliver to Developer all copies and portions
of the Software and related materials and documentation in
its possession furnished by Developer under this Agreement.
(c) All amounts payable or accrued to
Developer under this Agreement shall become immediately due and payable.
(d) All rights and licenses granted to
Customer under this Agreement shall immediately terminate.
[OPTIONAL:] This Agreement may be terminated
by Customer for its convenience upon thirty 30 days' prior written notice to
Developer. Upon such termination, all amounts owed to Developer under this
Agreement for accepted work shall immediately become due and payable and all
rights and licenses granted by Developer to Customer under this Agreement shall
immediately terminate. [END OPTION]
22. Taxes: The charges included here do not
include taxes. If Developer is required to pay any federal, state or local
sales, use, property or value added taxes based on the services provided under
this Agreement, the taxes shall be separately billed to Customer. Developer
shall not pay any interest or penalties incurred due to late payment or
nonpayment of such taxes by Customer.
23. Developer an Independent Contractor:
Developer is an independent contractor, and
neither Developer nor Developer's staff is, or shall be deemed, Client's
employees. In its capacity as an independent contractor, Developer agrees and
represents, and Customer agrees, as follows:
[INCLUDE ALL OF PROVISIONS 6a-j THAT APPLY:]
(a) Developer has the right to perform
services for others during the term of this Agreement subject to noncompetition
provisions set out in this Agreement, if any.
(b) Developer has the sole right to control
and direct the means, manner and method by which the services required by this
Agreement will be performed.
(c) Developer has the right to perform the
services required by this Agreement at any place or location and at such times
as Developer may determine.
(d) Developer will furnish all equipment and
materials used to provide the services required by this Agreement, except to
the extent that Consultant's work must be performed on or with Customer's
computer or existing software.
(e) The services required by this Agreement
shall be performed by Developer, or Developer's staff, and Customer shall not
be required to hire, supervise or pay any assistants to help Developer.
(f) Developer is responsible for paying all
ordinary and necessary expenses of its staff.
(g) Neither Developer nor Developer's staff
shall receive any training from Customer in the professional skills necessary
to perform the services required by this Agreement.
(h) Neither Developer nor Developer's staff
shall be required to devote full-time to the performance of the services
required by this Agreement.
(i) Customer shall not provide insurance
coverage of any kind for Developer or Developer's staff.
(j) Customer shall not withhold from
Developer's compensation any amount that would normally be withheld from an
employee's pay.
[OPTIONAL:] 24. Non-Solicitation of
Developer's Employees: Customer agrees not to knowingly hire or solicit
Developer's employees during performance of this Agreement and for a period of
[TIME PERIOD, USUALLY SIX MONTHS TO TWO YEARS] after termination of this
Agreement without Developer's written consent. [END OPTION]
[OPTIONAL:]25. Mediation and Arbitration: If
a dispute arises under this Agreement, the parties agree to first try to
resolve the dispute with the help of a mutually agreed-upon mediator in the
following location ___________ [LIST CITY OR COUNTY WHERE MEDIATION WILL
OCCUR]. Any costs and fees other than attorney fees associated with the
mediation shall be shared equally be the parties.
If it proves impossible to arrive at a mutually satisfactory
solution through mediation, the parties agree to submit the dispute to binding
arbitration in the following location ___________ [LIST CITY OR COUNTY WHERE
ARBITRATION WILL OCCUR] under the rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
in any court with jurisdiction to do so. [END OPTION.]
[OPTIONAL:] 26. Attorney Fees: If any legal
action is necessary to enforce this Agreement, the prevailing party shall be
entitled to reasonable attorney fees, costs and expenses. [END OPTION]
27. General Provisions:
(a) Complete Agreement: This Agreement
together with all exhibits, appendices or other attachments, which are
incorporated herein by reference, is the sole and entire Agreement between the
parties. This Agreement supersedes all prior understandings, agreements and
documentation relating to such subject matter. In the event of a conflict
between the provisions of the main body of the Agreement and any attached
exhibits, appendices or other materials, the Agreement shall take precedence.
(b) Modifications to Agreement:
Modifications and amendments to this Agreement, including any exhibit or
appendix hereto, shall be enforceable only if they are in writing and are
signed by authorized representatives of both parties.
(c) Applicable law: This Agreement will be
governed by the laws of the State of [LIST APPLICABLE STATE]
(d) Notices: All notices and other
communications given in connection with this Agreement shall be in writing and
shall be deemed given as follows:
• When delivered personally to the
recipient's address as appearing in the introductory paragraph to this
Agreement;
• Three days after being deposited in the
United States mails, postage prepaid to the recipient's address as appearing in
the introductory paragraph to this Agreement, or
• When sent by fax or telex to the last fax
or telex number of the recipient known to the party giving notice. Notice is
effective upon receipt provided that a duplicate copy of the notice is promptly
given by first-class or certified mail, or the recipient delivers a written
confirmation of receipt.
Any party may change its address appearing
in the introductory paragraph to this Agreement by giving notice of the change
in accordance with this paragraph.
(e) No Agency: Nothing contained herein will
be construed as creating any agency, partnership, joint venture or other form
of joint enterprise between the parties.
(f) Assignment: The rights and obligations
under this Agreement are freely assignable by either party. Customer shall
retain the obligation to pay if the assignee fails to pay as required by this
Agreement.
25. Signatures: Each party represents and
warrants that on this date they are duly authorized to bind their respective
principals by their signatures below.
Customer: [NAME OF CUSTOMER]
By: ____________________________________
(signature)
________________________________________
(typed or printed name)
Title: _________________________________
Date: _________________
Developer: [NAME OF DEVELOPER]
By: ____________________________________
(signature)
________________________________________
(typed or printed name)
Title: _________________________________
Date: _________________
Contributed by
FastDue.com |
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Name of Firm |
FastDue.com |
Location |
Fairfield,
Iowa,
United States |
Total Forms Contributed |
74 |
Phone |
641-209-1761 |
Website |
http://fastdue.com |
Email |
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