Software Development Agreement

Software Development Agreement

This Software Development Agreement (the “Agreement” or “Software Development Agreement”) states the terms and conditions that govern the contractual agreement between [DEVELOPER.Company] having his principal place of business at [DEVELOPER.Address], (the “Developer”), and [CLIENT.Company] having its principal place of business at [CLIENT.Address] (the “Client”) who agrees to be bound by this Agreement.

WHEREAS, the Client has conceptualized [QUICK DESCRIPTION OF SOFTWARE] (the “Software”), which is described in further detail on Exhibit A, and the Developer is a contractor with whom the Client has come to an agreement to develop the Software.

NOW, THEREFORE, In consideration of the mutual covenants and promises made by the parties to this Software Development Agreement, the Developer and the Client (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows:

1. DEVELOPER’S DUTIES.  The Client hereby engages the Developer and the Developer hereby agrees to be engaged by the Client to develop the Software in accordance with the specifications attached hereto as Exhibit A (the “Specifications”).

• a. The Developer shall complete the development of the Software according to the milestones described on the form attached hereto as Exhibit B. In accordance with such milestones, the final product shall be delivered to the Client by [FINAL DELIVERY DATE] (the “Delivery Date”).
• b. For a period of [TIME FRAME] after delivery of the final product, the Developer shall provide the Client attention to answer any questions or assist solving any problems with regard to the operation of the Software up to [NUMBER] of hours free of charge and billed to the Client at a rate of [RATE] per hour for any assistance thereafter. The Developer agrees to respond to any reasonable request for assistance made by the Client regarding the Software within [TIME FRAME] of the request.
• c. Except as expressly provided in this Software Development Agreement, the Client shall not be obligated under this Agreement to provide any other support or assistance to the Developer.
• d. The Client may terminate this Software Development Agreement at any time upon material breach of the terms herein and failure to cure such a breach within [TIME FRAME] of notification of such a breach.
• e. The Developer shall provide to the Client after the Delivery Date, a cumulative [TIME FRAME] of training with respect to the operation of the Software if requested by the Client.

2. DELIVERY.  The Software shall function in accordance with the Specifications on or before the Delivery Date.

• a. If the Software as delivered does not conform with the Specifications, the Client shall within [TIME FRAME] of the Delivery Date notify the Developer in writing of the ways in which it does not conform with the Specifications. The Developer agrees that upon receiving such notice, it shall make reasonable efforts to correct any non-conformity.
• b. The Client shall provide to the Developer written notice of its finding that the Software conforms to the Specifications within [TIME FRAME] days of the Delivery Date (the “Acceptance Date”) unless it finds that the Software does not conform to the Specifications as described in Section 2(A) herein.

3. COMPENSATION.  In consideration for the Service, the Client shall pay the Company at the rate of [RATE] per hour (the “Hourly Rate”), with a maximum total fee for all work under this Software Development Agreement of [MAXIMUM TOTAL FEE]. Fees billed under the Hourly Rate shall be due and payable upon the Developer providing the Client with an invoice.  Invoices will be provided for work completed by the developer once every [PAY PERIOD].

4. INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE. The Parties acknowledge and agree that the Client will hold all intellectual property rights in the Software including, but not limited to, copyright and trademark rights. The Developer agrees not to claim any such ownership in the Software’s intellectual property at any time prior to or after the completion and delivery of the Software to the Client.

5. CHANGE IN SPECIFICATIONS. The Client may request that reasonable changes be made to the Specifications and tasks associated with the implementation of the Specifications. If the Client requests such a change, the Developer will use its best efforts to implement the requested change at no additional expense to the Client and without delaying delivery of the Software. In the event that the proposed change will, in the sole discretion of the Developer, require a delay in the delivery of the Software or would result in additional expense to the Client, then the Client and the Developer shall confer and the Client may either withdraw the proposed change or require the Developer to deliver the Software with the proposed change and subject to the delay and/or additional expense. The Client agrees and acknowledges that the judgment as to if there will be any delay or additional expense shall be made solely by the Developer.

6. CONFIDENTIALITY. The Developer shall not disclose to any third party the business of the Client, details regarding the Software, including, without limitation any information regarding the Software’s code, the Specifications, or the Client’s business (the “Confidential Information”), (ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by the Client, or (iii) use Confidential Information other than solely for the benefit of the Client.

7. DEVELOPER WARRANTIES.  The Developer represents and warrants to the Client the following:

• a. Development and delivery of the Software under this Agreement are not in violation of any other agreement that the Developer has with another party.
• b. The Software will not violate the intellectual property rights of any other party.
• c. For a period of [TIME FRAME] after the Delivery Date, the Software shall operate according to the Specifications. If the Software malfunctions or in any way does not operate according to the Specifications within that time, then the Developer shall take any reasonably necessary steps to fix the issue and ensure the Software operates according to the Specifications.

8. INDEMNIFICATION. The Developer agrees to indemnify, defend, and protect the Client from and against all lawsuits and costs of every kind pertaining to the software including reasonable legal fees due to the Developer’s infringement of the intellectual rights of any third party.

9. NO MODIFICATION UNLESS IN WRITING. No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.

10. APPLICABLE LAW. This Software Development Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of [STATE] and subject to the exclusive jurisdiction of the federal and state courts located in [COUNTY], [STATE].

IN WITNESS WHEREOF, each of the Parties has executed this Software Development Agreement, both Parties by its duly authorized officer, as of the day and year set forth below.

EXHIBIT A

SOFTWARE SPECIFICATIONS

[PRODUCT FUNCTIONALITY DESCRIPTION]

EXHIBIT B

MILESTONE SCHEDULE

[PROJECT SCHEDULE]

Software Development Agreement

[Client Name] (“Client”), with a principal place of business at [Client's Address] has asked, [Your Name] (“Developer”), to create a custom website. Agreement as follows: 1. Scope of Work The scope of the work for Client is listed in Exhibit A of this Agreement. Developer will start working on this project within 1 days after Developer receives a signed copy of this Agreement and thirty percent of the total payment from Client. If the scope of work changes after signing this Agreement, Client and Developer agree to negotiate and sign an amended Exhibit A. 2. Project Milestones Developer and Client have agreed that Developer will work on this project in phases. Exhibit B to this Agreement lists the milestones that Developer and Client have agreed on will apply to each phase of Developer’s work for Client. If the scope of work changes after Developer and Client sign this Agreement, Client and Developer agree to negotiate and sign an amended Exhibit B. 3. Final Deliverables Developer will deliver to Client, via Internet, within Number of Days days after Client approves the final deliverable(s), digital files containing Developer work for Client under this Agreement. Specifically, Developer will provide Client with the following: On or before Date Developer agrees to provide to Client a full functioning Project (“Project”) based upon the specifications provided by Client (See Exhibit A). The Project created by Developer will be up and running, functional and accessible by end users (known as “users”). Client is informed and understands that Developer will use its best efforts to perform hereunder. However, Client understands that projects such as multimedia applications, websites and software are complicated and imperfect environs. Developer will attempt to cure and remedy any unforeseen glitches, bugs and/or errors, but those efforts will be based upon the original specifications, including agreed upon modifications of Client. 4. Original Work/Conflicts/Confidentiality Developer promises that work does not violate the patent, copyright, trade secrets or other property right of any person, firm or entity. Developer promises that this Agreement does not conflict with any other contract, agreement or understanding to which Developer is a party. Finally, Developer promises to hold and maintain in strict confidence any confidential information that Client provides (such as proprietary technical or business information), and Developer will not disclose such information to any third party except as may be required by a court or governmental authority. 5. Training The fee Client will pay Developer for this project includes Number of Hours of training in the use of the software created. Training will be conducted remotely using a screen sharing software. If Client asks Developer to train Client on site, Client agrees to pay actual costs of travelling to Client location, including but not limited to transportation, lodging, and food expenses. 6. Payment Client promises to pay Developer the total sum (“Fee”) of Amount (Pounds Sterling) in three (3) payments. Thirty (30) percent of the Fee will be due when Client and Developer sign this Agreement and before Developer begins work. A second thirty (30) percent of the Fee will be due upon completion of the agreed upon halfway milestone listed in Exhibit B. The remaining forty (40) percent of the Fee will be due immediately before Developer sends Client final files containing the Project that Client approved. Payment will be made using money transfer into Developer's bank account. If Client asks Developer to use any third-party content (i.e. stock photos or third party software) that must be incorporated in the software Developer is creating, Client promises to pay Developer the actual cost of licensing that third-party content for work under this Agreement. Client agrees that until Client pays Developer in full, Client will not acquire the rights or license to use or transfer ownership of any software that Developer creates for Client under this Agreement. 7. Compensation Developer agrees that the fee Client owes Developer will cover in full all of the work listed in Exhibit A of this Agreement. Client agrees that if Client asks Developer to make changes or do other work for Client that is not covered by this Agreement, Client will pay an agreed upon flat rate in addition to all other amounts Client owes Developer under this Agreement. 8. Feedback and Acceptance Client agrees that Developer cannot complete work for Client or meet agreed upon milestones unless Client gives timely feedback. Client agrees to provide timely feedback so that Developer can understand Client concerns, objections or corrections, and Client promises not to unreasonably withhold acceptance of the deliverables Developer will provide Client at each milestone. Developer and Client agree to the following acceptance process: Developer will test the software that Developer creates for Client to make sure that it’s working properly. In turn, Client promises that Client will evaluate the deliverables Developer provided to Client at each milestone listed in Exhibit B to this Agreement and let Developer know in writing, within forty eight (48) hours after Client receives each deliverable, whether Client accepts or rejects it. If Client rejects a deliverable, Developer will correct any errors and again ask Client to accept or reject the corrected deliverable – which Client promises to do within forty eight (48) hours after Client receives the corrected deliverable. When Developer delivers the final files to Client and completes work for Client under this Agreement, Client agrees that Client will test the software in its entirety to determine if Developer completed the work promised Client. Client promises to let Developer know in writing within seven (7) calendar days after Developer delivers the final files whether Client accepts or rejects the final files. If Client rejects the final files, Developer will correct any errors and again ask Client to accept or reject the corrected deliverable – which Client promises to do within seven (7) calendar days after Client receives the corrected deliverable. This process shall continue until Client accepts the deliverable or seven (7) calendar days have passed and Client has not accepted or rejected a deliverable (at which point it will be deemed accepted). Finally, Client agrees that Developer work on this project will be complete and the Agreement will end after Client has approved the final files. 9. Rights To The Client Content Client promises that: (a) Developer owns the rights to use anything Client gives me (“Client Content”); and (b) using such Client Content does not violate the patent, copyright, trade secret or other property right of any person, firm or entity. Client grants Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Developer’s work for Client under this Agreement and the limited promotional uses as allowed by this Agreement. Client also affirms and represents that this Agreement does not conflict with any other contract, agreement or understanding to which Client is a party. 10. Rights Before Payment In Full Client understands and agrees that until Client pays Developer in full, Developer owns full rights to everything Developer creates for Client under this Agreement. If Client does not pay Developer in full, Client agrees that Developer can complete, exhibit, use and sell the software at Developers sole and absolute discretion (except that Developer will not be able to use Client Content in such work). 11. Rights After Payment Made In Full. After Client pays Developer in full, Developer assigns to Client Developers right, title and interest in the copyrights for the final software that Developer creates for Client under this Agreement – contained in the final files that Developer will send to Client for approval. Client agrees that Developer will retain and Client will not receive any right, title or interest to the preliminary work or preliminary designs that are included with the work Developer creates for Client. If Client needs additional documentation, Developer will sign any further documents reasonably necessary to make sure that the rights Developer is giving Client under this Agreement are properly assigned to Client. Client agrees that Developer may use Client name/company name and trademarks as a reference in Developers promotional materials. Client also agrees that Developer may include, when referencing Developer’s work for Client, a general description of the work under this Agreement. 12. Right To Make Changes. Developer agrees that after Client pays Developer in full, Client may make any changes or additions to the software Developer creates for Client under this Agreement, which Client in Client’s discretion may consider necessary, and Client may engage others to make any such changes or additions, without further payments to Developer. Client agrees that if Client asks Developer to make changes or additions to the software after Client approves the final files, Client and Developer will negotiate a separate additional payment for Developer’s time to make such changes. 13. Rights To Know-How Developer may incorporate into the software Developer creates for Client various pre-existing development tools, routines, subroutines, programs, data or materials (Know-How). Client agrees that Developer retain all rights, title and interest, including all copyright, patent, and trade secret rights to that Know-How. Developer agrees that after Client pays Developer in full, Client will receive a nonexclusive, perpetual, worldwide license to use the Know-How in the software that Developer created for Client under this Agreement. However, Client shall not resell or make use of that Know-How in any other manner other than in connection with the software Client receives under this Agreement. 14. Assurance Developer promises that to the best of Developer’s knowledge, the software will not contain any virus, worm, trap door, back door, trojan horse, timer or clock that would erase data or programming or otherwise cause the software to become inoperable or incapable of being used. 15. Limitations of Remedies Developer shall not, under any circumstances, be liable to Client for consequential, indirect, incidental, special, punitive, or exemplary damages or losses arising out of or related to this agreement, even if Developer is advised of the likelihood of such damages occurring. Developer’s cumulative liability for any damages arising out of or in any manner related to this agreement (including, but not limited to, claims for breach of contract, breach of warranty, negligence, strict liability, or tort, shall be limited to the amount of the fee paid by Client to Developer under this agreement. 16. Entire Agreement This Agreement constitutes the complete and exclusive agreement between Client and Developer concerning the work on this project, and it supersedes all other prior agreements, proposals, and representations, whether stated orally or in writing. Developer and Client can modify this agreement in writing, if both Client and Developer sign that modification. 17. Independent Contractor Client agrees that Developer is an independent contractor and not Client’s employee. Although Client will provide general direction to Developer, Developer will determine, in Developer’s sole discretion, the manner and ways in which Developer will create the software for Client. The work that Developer creates for Client under this Agreement will not be deemed a “work-for-hire.” Whatever rights Developer grants Client are contained in this Agreement.    

Exhibit A

Scope of work described in detail

Exhibit B

Agreed upon milestones, including halfway point.