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Witnesseth:
c) “Taxes” shall mean all federal, state, local and other taxes,
including sales, use, and property taxes, related to this Agreement or
Customer’s use of the Software, excluding taxes based on Developer’s net
income or personal property.
a) Developer Responsibilities
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Software Development Agreement
b) Customer Responsibilities
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Software Development Agreement
Developer after the initial three (3) month probationary period, and
thereafter a billable skill level will be assigned with Customer’s approval.
a) Rates. The Customer agrees that, for the term of this Agreement.
it shall pay for the staffing levels, skill mix, and monthly labor rates as set forth
in Exhibit A. The staffing levels may be adjusted in accordance with Section 5.
The monthly rates set forth in Exhibit A shall be fixed for one (1) year from the
date of this Agreement, and thereafter may be increased by no more than five
percent (5%) per year upon ninety (90) days’ prior written notice to the
Customer. The rates set forth in Exhibit A include all compensation for
holidays, vacations and sick time. All Developer consultants assigned to
Customer’s projects shall work a minimum of one hundred sixty (160) hours per
month; partial months will be billed on a pro-rated basis based on one hundred
sixty (160) hours per month.
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Software Development Agreement
subject to a monthly interest charge equal to one percent (1%) per month on the
outstanding balance, provided such amount shall not exceed the maximum
amount allowed by law.
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Software Development Agreement
System will infringe any patent, copyright, trademark, trade secret or other
proprietary right of any third party. Developer further represents and warrants
to Customer that Developer will not use any trade secrets or confidential or
proprietary information owned by any third party in performing the Services or
developing the System. Developer further represents and warrants to Customer
that neither Developer nor any other company or individual performing
Services pursuant to this Agreement is under any obligation to assign or give
any work done under this Agreement to any third party.
(i) That the software and System will not abnormally end or
provide invalid or incorrect results as a result of date data, specifically
including date data which represents or references different centuries, or
more than one century;
(ii) That the software and System has been designed to ensure
year 2000 compatibility, including, but not limited to, date data century
recognition, calculations which accommodate same-century and multi-
century formulae and date values, and date data interface values that
reflect the century; and
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covenants and agrees that it has no rights to market, distribute, sell or license
any of the applications or deliverables being developed under this Agreement.
Additionally, the Developer covenants and agrees that, without the prior written
consent of the Customer, it will not enter into any discussions with any party
with respect to the foregoing applications and deliverables for a period
commencing on the date of this Agreement and terminating on that day which
is the third anniversary of the acceptance by the Customer of the last deliverable
provided under this Agreement. Developer acknowledges and agrees that a
breach of the covenant not to compete herein would result in irreparable harm to
the Customer for which monetary damages would not be an adequate remedy.
Accordingly, Developer agrees that the Customer will be entitled to injunctive
relief, a decree of specific performance or other equitable relief to enforce
Developer’s obligations under this section. If any provision of this section shall
be invalid, inoperative or unenforceable, it shall be as if such invalid, inoperative
or unenforceable provision had never been contained herein and such provision
were reformed so that it would be valid, operative and enforceable to the
maximum extent possible.
9. Deliverables
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of magnetic and electronic media using a method which ensures that it can not
be recovered. Developer shall state in writing the method of data destruction
and the date completed.
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11. Rights in Work. The parties acknowledge that any work performed by
Developer for Customer is being created at the insistence of Customer and shall be
deemed “work made for hire” under United States copyright law.
Customer shall have the right to use the whole work, any part or parts
thereof, or none of the work, as it sees fit. Customer may alter the work, add to it, or
combine it with any other work or works, at its sole discretion. Notwithstanding the
foregoing, all original material submitted by Developer as part of the work or as part of
the process of creating the work, including but not limited to programs, listings,
printouts, documentation, notices, flow charts, and programming aids, shall be the
property of Customer whether or not Customer uses such material. No rights are
reserved by Developer.
Developer hereby grants, assigns, and conveys to Customer all right, title
and interest in and to all inventions, works of authorship and other proprietary data
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and all other materials (as well as the copyrights, patents, trade secrets and similar
rights attendant hereto) conceived, reduced to practice, authored, developed or
delivered by Developer or its employees, agents, consultants, contractors and
representatives either solely or jointly with others, during and in connection with the
performance of services under this Agreement with Customer. Developer agrees that it
will not seek, and that it will require its employees, agents, consultants, contractors and
representatives not to seek patent, copyright, trademark, registered design or other
protection for any rights in any such inventions, works or authorship, proprietary data
or other materials. Developer shall have no right to disclose or use any such inventions,
works of authorship, proprietary data or other materials for any purpose whatsoever
and shall not communicate to any third party the nature of or details relating to such
inventions, works of authorship, proprietary data or other materials. Developer agrees
that it shall do and that it shall require its employees, agents, consultants, contractors
and representatives to do, at Customer’s expense, all things and execute all documents
as Customer may reasonably require to vest in Customer or its nominees the rights
referred to herein and to secure for Customer or its nominees all patent, trademark, or
copyright protection.
Developer agrees it will not disclose to any third party, without the prior
written consent of Customer, any invention, discovery, copyright, patent, trade secret
or similar rights attended hereto, made under or relating to this Agreement or any
proprietary or confidential information acquired from Customer under this Agreement,
including trade secrets, business plans and confidential or other information which may
be proprietary to Customer.
Developer warrants and represents that it has or will have the right,
through written agreements with its employees, to secure for Customer the rights called
for in this Section. Further, in the event Developer uses any subcontractor, consultant
or other third party to perform any of the services contracted for under this Agreement,
Developer agrees to enter into and provide to Customer such written agreements with
such third party, and to take such other steps as are or may be required to secure for
Customer the rights called for in this Section. Developer further agrees to provide the
names and addresses of all agents, contractors, consultants, representatives or other
third parties who perform work on behalf of Developer under this Agreement.
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the indemnifying party, its agents or subcontractors or resulting from use of the
software, and/or Services furnished hereunder. Customer agrees to defend Developer,
at Developer’s request, and Developer agrees to defend Customer, at Customer’s
request, against any such liability, claim or demand. Developer and Customer
respectively agree to notify the other party promptly of any written claims or demands
against the indemnified party for which the indemnifying party is responsible
hereunder. The foregoing indemnity shall be in addition to any other indemnity
obligations of Customer or Developer set forth in this Agreement.
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15. Compliance with Laws. Customer and Developer each shall comply
with the provisions of all applicable federal, state, county and local laws, ordinances,
regulations and codes, including, but not limited to, Customer’s and Developer’s
obligations as employers with regard to the health, safety and payment of its
employees, and identification and procurement of required permits, certificates,
approvals and inspections in Customer’s and Developer’s performance of this
Agreement.
Customer and Developer acknowledge that the Software and all related
technical information, documents and materials are subject to export controls under the
U.S. Export Administration Regulation. Customer and Developer will (i) comply
strictly with all legal requirements established under these controls, (ii) cooperate fully
with the other party in any official or unofficial audit or inspection that relates to these
controls, and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly,
any Software or related technical information, document or material or direct products
thereof to any country so restricted by the U.S. Export Administration Regulations, as
modified from time to time, or to any national or resident thereof, unless Developer has
obtained the prior written authorization of Customer and the U.S. Commerce
Department and any relevant local government authority. Furthermore, Developer
recognizes and agrees that concurrently with the execution of this Agreement, it shall
provide Customer with a Letter of Assurance, substantially in the form of Exhibit D
attached hereto.
16. Choice of Law. It is the intention of the parties hereto that this
Agreement and the performances hereunder and all suits and special proceedings,
arbitration, mediation or similar proceedings hereunder be construed in accordance
with and under and pursuant to the laws of the State of ____________, excluding its
principle of conflicts of laws.
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20. Force Majeure. Neither Developer not Customer shall be liable for any
delay in performance due to force majeure, including strikes, accidents, acts of God, or
other delays beyond the control of such party. If timely completion of the System is
prevented by any cause of force majeure, or any act of Customer then such failure or
delay shall not constitute default.
___________________.
Attn: Attn:
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26. Entire Agreement. This Agreement and the Exhibits attached hereto
contain the entire agreement between the parties and shall, as of the effective date
hereof, supersede all other agreements, written and oral, between the parties relating to
the subject matter hereof. Each of the parties hereto acknowledges that they have relied
on their own judgment and the advice of counsel in entering into this Agreement.
ATTEST: [CUSTOMER]
By: (SEAL)
ATTEST: [DEVELOPER]
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By: (SEAL)
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Exhibit A
Project Manager
Project Administrator
System Administrator
Oracle DBA
Project Leader
Senior Programmer
Programmer
Configuration Manager
Testers
Documentation
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Software Development Agreement
Exhibit B
Equipment List
Prices are cost estimates only. Final pricing is dependent upon actual discounts that
may be possible by Developer or Customer from each supplier.
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Exhibit C
Monthly Invoice
The Developer will provide the Customer with one invoice for services
rendered on a monthly basis. This invoice will include all labor charges, travel and
miscellaneous reimbursable expenses broken down by Customer project. The following
supporting documentation will be required:
Travel and Miscellaneous Expenses: All bills must be submitted with adequate
documentation, including the prescribed travel authorization form, the travel
expense report form, original receipts where possible, reason for travel, and the
Customer project manager’s written approval.
The invoice will be submitted by the 10th of every other month to the
Customer project manager. The Customer project manager is responsible for getting all
the requisite Customer approvals and submitting the invoice to the Customer Accounts
Payable department for payment.
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Exhibit D
Letter of Assurance
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