Alaska Software Development and Maintenance Agreement

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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.

   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.




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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 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


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   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.

   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 Alaska 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

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   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 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

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   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 Alaska. The parties agree that any legal action or proceeding with respect to this
   Agreement may be initiated only in the courts located at Alaska. 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]

   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
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   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.

   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: ____________________

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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:            _______________________




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                       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.]




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