This Software Development Agreement is made by and between:
WHEREAS, Customer/Buyer desires to retain The Development Team to develop the products/services/web-services (defined as projects or phases as addendums/exhibits of this contract) for Customer as described in the Documentation / Work Plan or Software Requirements (as defined in Section I below).
The Development Team shall serve as a contractor of Customer/Buyer, defined by the IRS as a 1099 Contractor, and shall design, develop, and implement applications software (“Software”) according to the functional specifications and related information, if any, attached hereto as Exhibits and incorporated herein by this reference (“Specifications”) and as more fully set forth in this Agreement. The Development Team acknowledges that it has been contracted for this specific set of tasks and that it shall report all findings and makes all recommendations directly to the management of Customer/Buyer. The Software, including all versions in either source code or object code form, shall be delivered to Customer/Buyer not later than each agreed due date. The Development Team will provide Customer/Buyer with at least five (5) business days’ notice of any potential delays.
The Development Team is authorized to ask for advance payment for the use of some services (will be described in the offer for each Client). Such payment will be due upon conclusion of the contract and will be debited from the bank account or charged to the credit card account provided by the Client. The amount to be collected will be displayed on credit card bills or bank account statements.
The total contract price for the Software Development tasks / project(s) shall be as set forth in the Work Plan and shall be payable in installations according to the payment schedule set forth within. Each installment shall be payable upon completion of each project phase by The Development Team and acceptance by Customer with the agreed schedule.
The Development Team reserves the right to reduce prices or to offer new products, services or methods of payment at any time either on a temporary or permanent basis. In addition, The Development Team is authorized to change prices at any given time with four weeks’ notice either in writing or by e-mail sent to the address provided by the Client. The changed price will take effect if the Client does not object to the changed price within four weeks. The contractual relationship will be carried forward according to the conditions and prices which were changed. The Development Team, in the course of notifying the Client about these changes, will especially inform the Client about the possibility of objecting to the changes, cancellation of services, the set time limit and legal ramifications in the case of failing to submit an objection.
If the Client objects within the set time limit, both parties reserve the right to terminate this agreement at the end of one month, unless the right to terminate immediately already exists. Until termination of the contract, the original Terms & Conditions will remain in effect.
Any payment made for Services which extend beyond the termination date will be reimbursed to the Client on a pro-rata basis. Further claims by the Client are considered invalid.
In case of late payment, The Development Team is authorized to charge interest set at 5% above the current base lending rate. The Development Team is also entitled to discontinue Services and to suspend the Client’s Account(s) if payment is overdue. During the Account suspension period, no charges for subscriptions which have been entered into will accrue. The Development Team, however, is authorized to impose a processing fee for suspending an Account, for informing the Client of Account suspension, for reactivating the Account or for creating a new Account upon payment in full. The Client is entitled to prove that no damage occurred or that a substantially lower level of damage was caused due to late payment. Failure to settle invoices on or before the due date for payment may result in changes to credit arrangements, special offers and related offerings at the sole discretion of The Development Team.
The Development Team agrees that the development of the Software is “work for hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that the Software shall be the sole property of Customer/Buyer. The Development Team hereby assigns to Customer/Buyer, without further compensation, all of its right, title and interest in and to the Software and any and all related patents, patent applications, copyrights, copyright applications, trademarks and trade names in the United States and elsewhere IF all & full price as agreed herein is paid in full and with no delays according to the terms of this agreement. The Development Team will keep and maintain adequate and current written records with respect to the Software (in the form of notes, sketches, drawings and as may otherwise be specified by Customer/Buyer), which records shall be available to and remain the sole property of Customer/Buyer at all times. All versions of the Software shall contain Customer/Buyer’s conspicuous notice of copyright. The Development Team will assist Customer/Buyer in obtaining and enforcing patent, copyright and other forms of legal protection for the Software in any country. Upon request, The Development Team will sign all applications, assignments, instruments and papers and perform all acts necessary or desired by Customer/Buyer to assign the Software fully and completely to Customer/Buyer and to enable Customer/Buyer, its successors, assigns and nominees, to secure and enjoy the full and exclusive benefits and advantages of this work.
Any and all inventions, discoveries, developments and innovations conceived by The Development Team prior to the term of this Agreement and utilized by The Development Team in rendering duties to the Customer/Buyer are hereby licensed to the Customer/Buyer for use in its operations and for an infinite duration. This license is non-exclusive and may be assigned without The Development Team’s written approval by the Customer/Buyer to a wholly-owned subsidiary of the Customer/Buyer.
The Development Team will prepare a Work Plan for each of the tasks / projects, which minimum includes the following:
The Development Team shall deliver the Work Plan to Customer for each Requirements of tasks or specific project within 48 hours of such request being submitted by the Customer. Customer shall have five (5) days to review and comment upon the Work Plan. Upon approval of the Work Plan by Customer, it will be attached as Exhibit and will become a part of this Agreement. The Development Team shall immediately commence development of the Task(s) and / or project (s) in conformity to the Work Plan.
If at any time following acceptance of the Work Plan, Customer should desire to change the specifications or other elements of the Work Plan, Customer shall submit to The Development Team a written proposal specifying such changes. The Development Team shall evaluate each such proposal and shall submit to Customer a written response within five (5) working days following receipt thereof. The Development Team ‘s response shall include a statement of the availability of personnel and resources, as well as the effect the proposed changes will have on the price, delivery dates or warranty provisions of this Agreement.
Any changes to the Work Plan shall be evidenced by a “Work Plan Amendment.” The Work Plan Amendment shall be signed by authorized representatives of Development Team and Customer, and shall be deemed a part of this Agreement. If The Development Team does not approve the Work Plan Amendment, he shall not be obligated to perform any additional services hereunder.
The Development Team recognizes and agrees that failure to deliver the task(s) and / or project (s) according to the Work Plan’s delivery schedule will result in expense and damage to Customer. The Development Team shall inform Customer immediately of any anticipated delays in the delivery schedule and of the actions being taken to assure completion of the Task(s) and / or project (s) within such schedule. If any delivery date is missed, Customer may, at its sole option, declare a default under this Agreement and may pursue all remedies set forth in Section 14; provided, however, that Customer shall provide The Development Team with thirty (30) days to cure the delay prior to declaring a default. Customer may not declare a default hereunder if such delay is caused by any action or failure to act of Customer.
The Development Team cannot be held in default of this Agreement in case of delays on the part of the Customer. In such case, The Development Team will provide the Customer with written notice that such a delay has occurred. Work on the Task(s) and / or project (s) shall not resume until the reason for the delay has been resolved by the Customer and notice of its resolution has been provided to The Development Team.
The Development Team shall provide no training in the use of the Web Site. Limited support via phone or e-mail will be available to Customer for 30 days following acceptance of the Web Site, as set forth in Section 5. “Limited support” shall include instructions to access, alter, and maintain the Task(s) and / or project (s) using software and/or technology purchased by Customer. The Development Team is not responsible to for providing software and/or technology to Customer.
Upon completion of the Task(s) and / or project (s) and the delivery of all items required to be provided under the Work Plan, Customer shall have thirty (30) days from such completion to inspect, test and evaluate the Task(s) and / or project (s) to determine whether it satisfies the acceptance criteria set forth in the Work Plan.
If the Task(s) and / or project (s) does not satisfy the acceptance criteria, Customer shall give The Development Team written notice stating why the Task(s) and / or project (s) is unacceptable. The Development Team shall have ten (10) days from the receipt of such notice to correct the deficiencies. Customer shall then have ten (10) days to inspect, test and reevaluate the Web Site. If the Task(s) and / or project (s) still does not satisfy the acceptance criteria, Customer shall have the option of either: (1) repeating the procedures set forth above, or (2) terminating this Agreement pursuant to Section 13.
If and when the acceptance tests establish that the Task(s) and / or project (s) complies with the acceptance criteria, Customer shall notify The Development Team that it accepts the Web Site. The date of such notification shall be the date on which Customer shall be obligated to make the final payment specified in the schedule set forth in the Work Plan.
The Development Team and Customer each hereby represent and warrant that the execution, delivery and performance of this Agreement has been duly authorized and that the Agreement is a legal, valid and binding agreement of The Development Team and Customer, enforceable in accordance with its terms. The Development Team and Customer further represent that this Agreement does not breach or violate any agreement to which it is a party or to which it is bound.
The Development Team hereby acknowledges that the Deliverables and any other documentation, materials or intellectual property hereunder (collectively, the “Work Product”) are works which have been specially commissioned by Customer and are “work made for hire” for Customer and Customer shall own all right, title, and interest therein. Customer shall be considered the author of the Work Product for purposes of copyright and shall own all the rights in and to the copyright of the Work Product and, as between Customer and The Development Team, only Customer shall have the right to obtain a copyright registration on the same which Customer may do in its name, its trade name or the name of its nominee(s). Accordingly, among other things, Customer is the author and owner of the Work Product and shall have the sole and exclusive rights to do and authorize any and all of the acts set forth in Section 106 of the Copyright Act with respect to the Work Product and any derivatives thereof, and to secure any and all renewals and extensions of such copyrights. To the extent The Development Team does not own such Work Product as a work made for hire, The Development Team hereby assigns, transfers, releases and conveys to Customer all rights, title and interest to such Work Product, including but not limited to all other patent rights, copyrights, and trade secret rights.
The 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.
Neither party may assign or subcontract its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
This Agreement may be terminated by Customer at its sole election upon thirty (30) days prior written notice to The Development Team. Upon such termination, all amounts owed to The Development Team under this Agreement for completed and accepted work in accordance with the Work Plan shall become due and payable. At such time, The Development Team shall deliver all completed work to Customer.
If this Agreement is terminated by Customer because of The Development Team ‘s default of his obligations hereunder, Customer may, after thirty (30) days written notice to The Development Team and a reasonable opportunity to cure:
If The Development Team terminates this Agreement because of Customer’s default, after a thirty (30) day written notice to Customer and an opportunity to cure, The Development Team may require: