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Montana Software Development and Maintenance Agreement

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Montana Software Development and Maintenance Agreement Powered By Docstoc
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                             This is an agreement between a software developer and a client for services in connection
                             with the development, maintenance and support of certain software. This document
                             contains the material terms and conditions of the agreement including the scope of
                             services, payment terms and the duration of the agreement. It also includes a limited
                             warranty and a limitation of liability clause. This agreement contains numerous standard
                             provisions that are commonly included in these types of agreements, as well as
                             opportunities for customization to ensure the specific needs of the parties are addressed.
             ®




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                  SOFTWARE DEVELOPMENT AGREEMENT

This Software Development Agreement and the Schedules attached hereto (collectively,
the “Agreement”) is made as of this ________ [Month] __ [Date], 20__ [Year],
(“Effective Date”) by and between _____________________ [Instruction: Insert the
name of Developer] (the “Developer”), having its principal place of business at
____________________________________ [Instruction: Insert the address of
Developer Company], and _____________________ [Instruction: Insert the name of
Client] (the “Client”), having its principal place of business at
____________________________________ [Instruction: Insert the address of Client].

                                      RECITAL

WHEREAS, Developer is engaged in the business of software development;

AND WHEREAS, Client wishes to utilize the services of Developer in connection with
the development, maintenance, and support of certain software identified in Schedule A
(the “Software”);

NOW, THEREFORE, in consideration of the mutual covenants herein and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
Developer and Client (each “Party”; collectively, the “Parties”) agree as follows:

1. Definitions

   a) The Delivery is defined as the delivery of software and other performances from
      the Developer as described in this agreement.

   b) The Initial Term means the fixed initial period of time (starting from the
      Effective Date) in which Client pays to Developer the price in consideration of
      the services performed by the Developer under this Agreement as described
      herein in Schedule B.

   c) The Project is defined as the development project to be completed by the
      Developer pursuant to this agreement to specify, develop, and deliver software, as
      well as other performances that are described in this agreement.

   d) The Renewal Term means the additional period of time for which the term of this
      agreement will be extended automatically upon expiration of the Initial Term,
      described herein in Schedule B.

   e) The Software is defined as the specially developed software described in
      Schedule A, which is to fulfill the Client's objectives and requirements.
2. Scope of Services

   Developer will perform the services as agreed between the parties from time to time
   relating to development or modification of Software identified in Schedule A or any
   other software requested by the Client to be developed or modified. The scope and
   service levels for such services required by Client and functional specifications for
   each Project shall be defined by the parties from time to time in the Service Level
   Agreement (“SLA”) executed concurrently and referenced to this Agreement. Client
   will cooperate with Developer’s reasonable requests for information, access to
   information systems and data necessary for the completion of the Project.

   Any configuration, integration, data migration, and application maintenance does not
   fall in scope of services unless otherwise agreed between the parties.

3. Term and Termination

   This Agreement shall be effective for the Initial Term, commencing on Effective
   Date, and shall automatically renew and continue in effect thereafter for each
   Renewal Term (collectively “the Term”) as set forth in Schedule B unless either
   Developer or Client elects not to renew this agreement by way of a written notice
   served no less than the notice period (specified in Schedule B) prior to the end of the
   then current term.

4. Price and Payment Terms

   During the Initial Term, as consideration for the services provided by the Developer
   herein, Client shall pay to Developer, for each of the resources, in accordance with
   their qualifications, employed by the Developer, the price pursuant to the price and
   payment terms set forth in Schedule D.

   Developer is entitled to revise the price and payment terms for respective Renewal
   Term. Such revision in the price and payment terms shall be made by Developer
   thirty (30) days prior to the expiration of the then current term.

   Client shall, in addition to the other amounts payable under this Agreement, pay all
   sales, services, and other taxes, state, federal, or otherwise, however designated,
   which are levied or imposed by reason of the transactions contemplated by this
   Agreement. Without limiting the foregoing, Client shall promptly pay to Developer
   an amount equal to any such items actually paid, or required to be collected or paid
   by Developer.

   Client shall pay Developer via a payment method and in currency as set forth in
   Schedule D. Client, not Developer, shall be responsible for payment of applicable
   payment transfer charges. Developer reserves the right to change the payment method
   from time to time. In the event of termination without cause, Client agrees to pay
   Developer for all of Developer’s Services performed up to the date of termination.


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   Client agrees that the price set forth in Schedule D shall not include costs of any third
   party components, content, graphics, hosting, secure certificates, domain name,
   payment gateway or library, specific development tools, or hardware or platforms, if
   required in the development of Software, unless otherwise agreed and specified in
   Schedule D.

5. General Conduct of the Parties.

   The parties acknowledge and agree that the successful execution of services specified
   under the SLA shall require the cooperation of both parties. Developer shall endeavor
   to provide the services in accordance with the SLA. Client agrees to provide such
   information and access to facilities, personnel, and systems, if applicable, as may be
   reasonably required or requested by Developer to provide the services. If Client’s acts
   or failures to act cause any hindrance or delay in Developer's performance of the
   services, the time for Developer's performance under the SLA shall be extended
   accordingly and Client shall pay Developer, at Developer's then current rates, for any
   additional time spent, and reimburse Developer for any additional expenses incurred
   as a result of such hindrance or delay.

6. Requirements concerning Developer's resources and qualifications

   The Developer warrants that it has or can avail both the qualitative and quantitative
   resources that are necessary for execution of the Project in accordance with the terms
   of the SLA. The Developer's project manager and other key personnel shall be listed
   in Schedule C. Developer may replace the project manager or other key personnel
   during the term of this Agreement and shall inform the Client about such
   replacement(s). Client shall not object to such replacement(s) without a valid reason.
   Developer hereby warrants that such replacement(s) shall not affect and/or delay the
   execution of Project.

7. Use of subcontractors

   The Developer may use the subcontractor(s) listed in Schedule C in connection with
   the Project. Developer may replace the subcontractor(s) during the term of this
   Agreement and shall inform the Client about such replacement(s). Client shall not
   object to such replacement(s) without a valid reason. Developer hereby warrants that
   such replacement(s) shall not affect and/or delay the execution of Project.

   The Client is free to hire third parties (subcontractors) to provide assistance in
   connection with its duties under this Agreement. The Developer shall be notified of
   the Client's selection of a subcontractor, and the Developer may oppose that the
   subcontractor is hired if it can prove that it will represent a significant commercial
   disadvantage to it.

   If one of the parties hires subcontractors to carry out work tasks pursuant to this
   Agreement, then such party is also fully responsible for the performance of these
   tasks in the same manner as if it had performed the tasks itself. Such party must also
   ensure that the subcontractors are subject to the same confidentiality obligations that
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   apply to the parties themselves and they sign the required declaration of non-
   disclosure of confidential information provided by the other party and mutually
   agreed between both parties.

8. Delivery and Acceptance Procedure.

   8.1. Delivery Period. Developer shall provide each Deliverable to Client in
   accordance with the SLA. All Deliverables, if any, shall be provided in the form of
   Object Code, unless otherwise specified in the SLA, except Developer shall also
   provide Source Code and Documentation for Deliverables to be owned by Client.

   8.2. Acceptance. The procedure for delivery and acceptance of Deliverables by Client
   shall be contemplated by the applicable SLA.

9. Ownership of Intellectual Property

   Client will be given the copyright and all intellectual property rights to the Software
   and the related source code, documentation, specifications, and other materials that
   are designed, developed, and delivered in accordance with this Agreement, unless
   otherwise agreed in Schedule E.

   These rights also include the right to modification and assignment.

10. Confidential Information

   All information relating to Client that is known to be confidential or proprietary, or
   which is clearly marked as such, will be held in confidence by Developer and will not
   be disclosed or used by Developer except to the extent that such disclosure or use is
   reasonably necessary to the performance of Developer’s Work. All information
   relating to Developer including, but not limited to, price and payment terms, that is
   known to be confidential or proprietary, or which is clearly marked as such, will be
   held in confidence by Client and will not be disclosed or used by Client except to the
   extent that such disclosure or use is reasonably necessary to the performance of
   Client’s duties and obligations under this Agreement. The obligations of
   confidentiality will extend for a period of 3 years as per [STATUTE], after the
   termination of this Agreement, but will not apply with respect to information that is
   independently developed by the parties, lawfully becomes a part of the public
   domain, or of which the parties gained knowledge or possession free of any
   confidentiality obligation.

11. Maintenance and Support program

   The parties may from time to time agree upon Maintenance and Support services in
   relation to the Software developed pursuant to the SLA. The scope and service levels
   for maintenance and support services shall be described in a separate service level
   agreement and referenced to this Agreement.



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   Maintenance and support services under this Agreement shall extend only to the
   Software free of any modifications and such services shall be rendered by Developer
   from its location in Montana and not onsite.

   Maintenance and support services do not include, and Developer shall not be liable
   for hardware, vendor operating systems and other system software, any software
   developed by Client, and third-party software.

   Provision of maintenance and support services does not guarantee automatic Software
   updates. Client agrees to install the latest Software update available from Developer,
   when required, as a condition of Developer providing support services. Developer
   reserves the right to cease the provision of maintenance and support services anytime
   without notice should Developer, in its reasonable discretion, determine that
   continued support for the Software is no longer economically practicable and/or in the
   event that the Software has become inoperable or incompatible with current operating
   systems, hardware, or other technologies. Also, abuse of support privileges including,
   but not limited to, frivolous contact, rude behavior and/or customer incompetence,
   harassment, or failure to follow instructions may result in the immediate cessation of
   support services.

12. Warranty and Disclaimer

   Developer shall remedy any errors or defects in the Software encompassed by this
   Agreement at no additional cost to the Client, provided that the Client exercises due
   care and assuming normal use. The warranty period is ___________ (___)
   [Instruction: Insert he number of days, e.g., “thirty (30)”] days [Comment: these
   numbers are not provided by the law, but can be any number the user chooses]
   calculated from the date of delivery of Work.

   Developer warrants the Developer’s Work will be performed in a workman like
   manner and in conformity with generally prevailing industry standards.

   THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE
   BY DEVELOPER. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 12 TO
   THE MAXIMUM EXTENT PERMITTED BY LAW, DEVELOPER
   SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
   IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE,
   RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY
   SERVICES PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY
   IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
   PARTICULAR PURPOSE AND TITLE OF THIRD PARTY RIGHTS.

13. Limitation of Liability

   Developer does not warrant that backups are made on third party systems, Client has
   the responsibility to commit third party suppliers to perform the recommended
   backups required to ensure minimization of data loss and data integrity. Developer
   cannot be held responsible for software damage, loss of data, loss of content or feeds
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   relating to viruses and Trojans or malicious tools on third party system. Developer
   will not be responsible for usage or no usage of software or data from this software.

   NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO ANY
   OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
   CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
   BUSINESS, PROFITS, DATA OR ANY OTHER LOSS) INCURRED OR
   SUFFERED BY THE OTHER ARISING AS A RESULT OF OR RELATED TO
   THE PERFORMANCE OF DEVELOPER’S WORK, WHETHER IN CONTRACT,
   TORT, OR OTHERWISE, EVEN IT HAS BEEN ADVISED OF THE
   POSSIBILITY OF SUCH LOSS OR DAMAGES.

14. Relationship of Parties

   This Agreement does not make either party the agent of the other, or create a
   partnership, joint venture, or similar relationship between the parties and neither party
   will have the power to obligate the other in any manner whatsoever. Developer
   acknowledges and agrees that its relationship with Client is that of an independent
   contractor, and Developer will not act in a manner that expresses or implies a
   relationship other than that of an independent contractor.

15. Governing Laws; Attorneys' Fees

   This Agreement shall be governed by and construed and enforced in accordance with
   the laws of Montana. The parties agree that any legal action or proceeding with
   respect to this Agreement may be initiated only in the courts located at Montana. By
   execution and delivery of this Agreement, the parties submit to and accept with
   regard to any such action or proceedings the exclusive jurisdiction of such courts. If
   any legal action or proceeding is initiated, the prevailing party shall be entitled to all
   attorney fees, court costs, and expenses in addition to any other relief to which such
   prevailing party may be entitled. The United Nations Convention on Contracts for the
   International Sales of Goods shall not apply to this Agreement.

16. Indemnification by Client

   Client hereby agrees that Client shall fully indemnify and completely save harmless
   Developer and any of its directors, officers, employees, agents, and representatives of
   and from any and all liabilities, claims, expenses, damages including reasonable legal
   fees, and disbursements arising out of any claims or suits for damage or injury to
   person in connection with, directly or indirectly, in whole or in part, (i) any negligent
   act or omission of Client’s employees, agents, contractors, directors, officers or any
   person for whom Client has a legal responsibility, or (ii) Client’s failure to comply
   with any municipal, state, or federal law, or (iii) any act or omission which is, or can
   be determined to be, a breach of any term or condition of this Agreement.

   [Instructions: Choose from one of the clauses below]



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   Developer hereby agrees that he shall fully indemnify and completely save harmless
   Client and any of his agents or representatives of and from any and all liabilities,
   claims, expenses, damages including reasonable legal fees, and disbursements arising
   out of any claims or suits for damage or injury to person in connection with, directly
   or indirectly, in whole or in part, (i) any negligent act or omission of the Developer’s
   employees, agents, contractors, directors, officers or any person for whom it has a
   legal responsibility, or (ii) the failure of Developer to comply with any municipal,
   state, or federal law, or (iii) any act or omission which is, or can be determined to be,
   a breach of any term or condition of this Agreement.

                                           OR

   The Developer agrees to defend, indemnify, and hold harmless the Client and any of
   his, agents or representatives from any and all liability, including claims, demands,
   losses, costs, damages, and expenses of every kind and description (including death),
   or damages to persons or property arising out of or in connection with or occurring
   during the course of this Software Development Agreement where such liability is
   founded upon or grows out of the acts or omissions of the officers, employees, or
   agents of the Developer.

17. General

   a) Publicity Rights. Client expressly grants Developer the right to include Client as
      a customer on Developer’s website or other promotional material in relation to the
      Software for marketing purposes. Client can deny Developer this right at any time
      by submitting a written notice, requesting to be excluded from promotional
      material. Upon receipt of such notice, Developer will remove any reference to
      Client from such promotional material within ___________ (___) [Instruction:
      Insert he number of days, e.g. “thirty (◊ 30)”] days and make no further
      reference to Client.

   b) Non-Solicitation. During the Term of this Agreement and without the written
      approval of Developer and/or its authorized representative, Client will not, and
      will ensure that its affiliates will not, directly or indirectly: (i) solicit for
      employment or for performance of any services, any person employed by
      Developer, or (ii) hire or engage, for any services, any person employed by
      Developer. In the event of a breach of this non-solicitation clause, Developer may
      claim monetary damages from the Client, which Client agrees shall be fair and
      reasonable compensation for Developer.

   c) No Waiver. The failure by any party to exercise any right provided for herein
      shall not be deemed a waiver of any right hereunder.

   d) Effect of Termination. Sections 12 (Warranty and Disclaimer), 13 (Limitation of
      Liability), 15 (Governing Laws; Attorneys' Fees), and this Section 17 shall
      survive the expiration or termination of this Agreement.



© Copyright 2011 Docstoc, Inc.                  7
   e) Entire agreement; Modifications. This Agreement constitutes the entire
      agreement between Client and Developer with respect to the subject matter
      hereof, and supersedes all proposals, oral or written, and all other communications
      between the parties with respect to such subject matter. This Agreement shall not
      be modified, except by written agreement signed by the parties hereto.

   f) Force Majeure. Developer shall not be liable for and shall be excused from any
      failure to deliver or perform or for delay in delivery or performance due to causes
      beyond its reasonable control, including but not limited to, work stoppages,
      shortages, civil disturbances, terrorist actions, transportation problems,
      interruptions of power or communications, failure of suppliers or subcontractors,
      natural disasters, or other acts of Nature.

IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first stated above.


DEVELOPER:                                               CLIENT:
Name: ____________________                         Name: ____________________
Address: ____________________                      Address: __________________
         ____________________                            ____________________
Signature: ________________                        Signature: _________________
E-mail: ____________________                       E-mail: _________________
Date: ____________________                         Date:     _________________




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                                 SCHEDULE A



Name of the Software:      _____________________

Brief Description

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
______________________________.




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                             SCHEDULE B – Term



Initial Term:       _____ (__) months/years

Renewal Term:       _____ (__) months/years

Notice Period:      _____ (__) days




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                                 SCHEDULE C

1)    Name of the Project Manager:
      __________________________________.

2)    Names of Other Key Personnel of the Developer working on the Project

a)    Project Leaders

b)    Programmers

c)

d)

3)    Names of Subcontractors for the Project

a)

b)

c)




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                      Schedule D – Price and Payment Terms

The Client agrees to pay to Developer an hourly rate for each of the personnel in
accordance with their qualifications as set forth below:




                                                Minimum number
                                                of hours committed
S        Personnel (#)     Qualification        per month            Hourly Rate
No.                                                                  for each
                                                                     Personnel




 1      Project Manager
              (__)



 2       Project Leaders
              (__)



 3     Programmers (__)




Payment Method:      _______________________

Currency:            _______________________




© Copyright 2011 Docstoc, Inc.             12
                   Schedule E – Ownership of Intellectual Property

   [Instructions: Choose from one of the clauses below]

It is hereby agreed between the parties that the Client will be given the copyright and all
intellectual property rights to the Software and the related source code, documentation,
specifications, and other materials that are designed, developed, and delivered in
accordance with this Agreement.

                                           OR

It is hereby agreed between the parties that the copyright and all intellectual property
rights to the Software and the related source code, documentation, specifications, and
other materials that are designed, developed, and delivered in accordance with this
Agreement, shall remain with the Developer; however, Developer shall grant an
exclusive license to the Client for the exploitation of such rights.

                                           OR

It is hereby agreed between the parties that the copyright and all intellectual property
rights to the Software and the related source code, documentation, specifications, and
other materials that are designed, developed, and delivered in accordance with this
Agreement, shall be co-owned by both the parties.

[Instruction: The figures, names and numbers provided in the schedules are not
required by law and are only for reference and you are advised to insert terms as
per your requirement.]




© Copyright 2011 Docstoc, Inc.                  13

				
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Description: This is an agreement between a software developer and a client for services in connection with the development, maintenance and support of certain software. This document contains the material terms and conditions of the agreement including the scope of services, payment terms and the duration of the agreement. It also includes a limited warranty and a limitation of liability clause. This agreement contains numerous standard provisions that are commonly included in these types of agreements, as well as opportunities for customization to ensure the specific needs of the parties are addressed.
This document is also part of a package Essential Montana Legal Documents 145 Documents Included