Software development agreement, eng, universal

SOFTWARE DEVELOPMENT AGREEMENT № Number of the Agreement
 

place of conclusion                                       Sate of conclusion

Повне найменування (Eng.) , registered under the laws of Країна реєстрації (Eng.) , with its registered office at Адреса місцезнаходження (юридична адреса) (Eng.) on the one hand, hereinafter referred to as “Customer”,

and

Повне найменування (Eng.) , registered under the laws of Країна реєстрації (Eng.) with its registered address Адреса місцезнаходження (юридична адреса) (Eng.) ,hereinafter referred to as “Contractor”, on the other hand, concluded this Agreement as follows:

DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below:

1. Software – shall mean the computer program “Name of the software ” described in the Specifications stored on any device selected by the Customer in its sole discretion and which constitutes the result of the performance by the Contractor in accordance with this Agreement.
2. Specifications – shall mean requirements to the Software that are agreed in SRS (Software Requirements Specifications) document via e-mail (Exhibit A) by the authorized representatives of the Parties, each of whom is listed on Exhibit A attached to this Agreement.
3. Confidential Information - shall mean information relating to the Party’s customers or client base, product information, information relating to the services offered by a Party, a Party’s computer system, business information, marketing plans, sales information, all source code relating to the Software and all other knowhow, trade-secrets and property of value to one party. Confidential Information does not include information which is generally known to the public, which has been independently developed by one party without reference to Confidential Information of the other party or information that was known or otherwise available to a party prior to the disclosure of the other party.
4. Agreement - shall mean the present document which includes its all appendixes and all documentation stated as well as any amendments and/or addendums that the Parties can conclude in the future in writing and signed by authorized representatives of the Parties which set up,  annex, concretize, specify or amend the terms of the Agreement or its addendums.
5. Parties - shall mean the Customer and the Contractor under the Agreement when mentioned in the text altogether.

1. SUBJECT OF THE AGREEMENT

1.1. Subject Matter.  The subject of this Agreement is the development by Contractor, as an independent contractor, of the Software pursuant to the terms and conditions of this Agreement.

1.2. Work Statement.  Subject to the terms and conditions of this Agreement, the Customer hereby retains the Contractor, as an independent contractor, and the Contractor hereby undertakes, as an independent contractor, to develop the Software and to deliver the Software (including binary files and all documentation and other materials related thereto, if applicable) to the Customer. The Customer hereby undertakes to receive the Software and upon the Customer’s acceptance of the Software, the Customer undertakes to compensate the Contractor for its services in accordance with Section 4 of this Agreement.

2. TIMING; ACCEPTANCE OF SOFTWARE

2.1. Preliminary testing (on project milestones)

Contractor shall deliver working version the Software for testing no later than the delivery date agreed by Parties before or during the development process. Delivery date must be agreed in email or in other written form.

Customer shall have five (5) days from the delivery of the Software to inspect, test and evaluate the Software and to provide written recommendations on Software improvements if any.

2.2. Final Acceptance

Contractor shall deliver the Software (and all documentation and other materials related thereto, if applicable) and install the Software no later than the final delivery date agreed by Contractor and Customer before or during the development process.

2.3. Customer shall have ten (10) days from the delivery and installation of the Software to inspect, test and evaluate the Software.  If the Software is not acceptable the Customer shall notify the Contractor of why the Software in unacceptable by reporting list of deficiencies in the written form.

Contractor shall have ten (10) days from such notification to correct such deficiencies.  Customer shall then have ten (10) days to inspect, test and reevaluate the Software.  If the Software still does not meet the applicable Specifications, as determined by Customer, in its sole and absolute discretion, the Customer will have the option of either: (i) repeating the procedure set forth above; or (ii) terminating this Agreement pursuant to the Section 8 below. 

2.4. If Customer does not give Contractor notice within the initial ten (10) day inspection, testing and evaluation period, the Customer shall be deemed to have accepted the Software. 

2.5. All services of the Contractor during the Acceptance period are billed on terms specified in Section 4 of this Agreement, unless otherwise stated in written supplementary Agreements between Parties.  

2.6  Ownership of Software and Background Information.

(a)   Contractor hereby agrees that upon completion of its services required to be performed under this Agreement or the earlier expiration or termination of this Agreement (but subject to the last sentence of this Section 2.6(a), Contractor hereby assigns to the Customer, Contractor’s full and exclusive right, title and interest in and to the Software (and any accompanying documentation) and in any and all related trademarks, copyrights, trade secrets and other confidential and proprietary information which Contractor possesses with respect to the Software as of the date of the final acceptance of the Software.

 Except with respect to the Background Information (as defined below) and as otherwise provided in this Agreement, Contractor shall retain no right, ownership and title in the Software or any other proprietary rights related thereto.  The parties agree that the Software and all accompanying rights are being sold in their entirety to Customer for whatever use it desires, and nothing contained herein shall be deemed to constitute a license for Customer.  Notwithstanding the foregoing, in the event that the agreement is terminated in accordance with Section 7.3, the Contractor shall retain ownership to components of the Software which (a) have not been delivered to Customer, (b) are not yet completed and (c) have not been paid for by Customer. 

(b)   Notwithstanding the foregoing, Contractor shall own and retain all right, title and interest to various preexisting development tools, programs, data and materials that Contractor may incorporate into the Software to be developed under this Agreement (collectively, the “Background Information”).  Contractor hereby grants Customer a nonexclusive, perpetual, fully paid-up license to use the Background Information and all updates thereto for Customer’s internal business purposes in connection with the Customer’s use of the Software.

(c)  Upon accomplishment of this Agreement the Customer solely receives all the proprietary rights for the Software. Property rights to intellectual property created under the terms of this Agreement shall pass from Contractor to the Customer in full without any restrictions as stipulated by applicable legislation. There are no area restrictions for the proprietary rights and their term uses are not limited. Further use of the Software regardless of the manner of such use does not require any approvals from the Contractor.    

Contractor has the right to place the work in its own portfolio with the purpose of advertising its  services to third parties.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. Joint responsibilities of the Parties:

• The parties shall each cooperate in good faith to agree upon the Specifications, to perform their respective obligations in accordance with the terms of this Agreement
• to confirm the delivery and acceptance of materials and Specifications by official e-mails. The Parties introduce authorized representatives for each side and sign Contacts Form (Appendix A). The representatives of each party are able to take decisions on behalf of the party and represent the interests of each party with respect to day-to-day ordinary project related issues. All e-mail correspondence of representatives is considered as official, and cannot be overwritten by other employees of Customer and Contractor.

The Parties agreed that all decisions confirmed by authorized representatives cannot be cancelled by any other employees of the Customer or the Contractor.

3.2. Customer is entitled:

• to all proprietary rights of the Software;
• to audit the performance by Contractor of this Agreement;
• to adjust the Specifications provided to Contractor in the course of the Contractor’s performance hereunder using such Specifications; and
• to review and provide comments and guidance in the course of the Contractor’s performance of the Agreement.

3.3. Customer undertakes:

• To test the Software provided by the Contractor as specified in Section 2.3;
• in case the Software fails to function  as required by this Agreement, Customer will follow the procedures set forth in Section 2.3 above;
• provide the Contractor with all materials and/or data required to perform the works;
• to make payment for  the services performed by Contractor according to this Agreement;

3.4. Contractor is entitled:

• to demand payment for the services  performed and accepted by Customer according to this Agreement;
• to make and executive own decisions regarding technical specifications and design of Software, unless those were specified in Specifications agreed with the Customer;
• suspend the contract, pre-sending a warning letter (two weeks before the suspension date) in case of a material breach of this Agreement by the Customer, namely, the late provision of the necessary materials/information, untimely approval of materials and stages of work, and timely payment to the Contractor for its services hereunder, subject to acceptance thereof by Customer (each, a “Customer Breach”).

3.5. The Contractor shall not be responsible for any delay in its performance of its obligations under this Agreement (as may be amended or supplemented from time to time) in the event such delays are caused by any Customer Breach.

3.6. Contractor hereby undertakes:

• to start development of the Software during one week, after all pre-developments stages are completed
• render performance of the Work in the compliance with technical requirements specified of the Customer in the Specifications.  In case of technical difficulties the Contactor may initiate changes to Software requirements; however such changes must be agreed with the Customer in advance.
• provide a response by email on the report of defects, if Customer sent them and agree terms for improvement of Software with Customer in line with procedures set in Section 2.3

3.7. Nonsolicitation. Customer and its affiliates during the term of this Agreement and within 2 (two) years after its expiration or termination may not enter into any employment relationship with the individuals who participate in the performance of this Agreement and who are employees of the Contractor at the time of the execution of this Agreement. If the Customer enters into such employment agreement it must pay the Contractor the compensation in amount of 36 000 US dollars.

4. FORMS AND PROCEDURES OF PAYMENTS

4.1. The contract price under this Agreement is price USD (price, прописом (eng.) ).

4.2. Customer will pay to the Contractor’s current bank account stated below in this Agreement.

4.3. Customer has to pay the Contractor for the Software till term for prepayment (type date) .

4.4. The invoice must be paid by the Customer within 10 days of receipt of the scanned invoice copy via e-mail. If the invoice is not paid within 10 days period the Contactor receives the right to stop all works under this Agreement and negotiate further action. 

4.5. The wire transfer fees that concerns the sums payable under this Agreement, shall be paid either by Customer, when charged by Customer's bank, or by Contractor, when charged  by Contractors’ Bank. 

5. RESPONSIBILITIES OF THE PARTIES

5.1. In the event of any delay in the performance by the Contractor hereunder, the Customer shall have the right to demand from the Contractor to pay the default amount as well as penalty in the amount of 0.1% of total agreement cost for each day of delay, but in no case more than 20% of the total cost of the unfulfilled obligations;

5.2. In the event of any default by the Customer in the payment obligations hereunder, the Contractor shall have the right to suspend operation of the Software and filled in complaints with companies that own applicable applications market.

6. FORCE MAJEURE

6.1. The parties shall not be liable for partial or complete failure to perform obligations under the Agreement if such failure was caused by extraordinary and irresistible force (force majeure), i.e. events, occurrence of which neither Customer nor the Contractor were unable to anticipate and prevent (fires, floods, earthquakes, other natural phenomena, military actions, decisions and actions (or inaction) of authorities and local governments, etc.).

6.2. Party intends to refer to the force majeure, shall within ten days notify other Party of occurrence, nature and probable duration of such circumstances. In this case the period of force majeure shall be extended to the relevant period of execution by the Parties of their obligations under this Agreement.

6.3. If the force majeure continues for more than 30 days, the Parties shall negotiate on further execution or termination of this agreement and relevant mutual.

6.4. The fact of occurrence and duration of force majeure shall be confirmed by official act of body authorized to issue such acts at the location of force majeure occurrence.

6.5. Force majeure shall not release any Party from liability, if the Party exceeds time limit obligations prior to force majeure

7. DISPUTE RESOLUTION

7.1. The Parties agree that in the event of any disputes under this Agreement, the Parties shall attempt to resolve all disputes by way of negotiations and mutual consultations.

7.2. This Agreement shall be interpreted and enforced in accordance with the laws of indicate jurisdiction . The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this paragraph. No termination or expiration of this agreement shall affect the right to arbitrate disputes

8. AGREEMENT DURATION AND OTHER TERMS AND CONDITIONS

8.2. This Agreement shall come into effect  as of the day of signing and is valid until the Parties completely fulfill their obligations under this Agreement and all agreed upon supplements, unless the Agreement is terminated earlier as stated in Section 8.3 below.
8.2. This Agreement may be canceled or terminated early only on conditions expressly stipulated in this Agreement, namely:

• By the mutual written agreement by the Parties; or
• By either party due to a breach, namely, improper fulfillment of the other party’s obligations, under this Agreement. Such termination is effected with 10 days’ prior written notice.

8.3. All notices, amendments and supplements to this Agreement shall become effective when they are documented in writing and signed by both Parties.

After termination of this Agreement, all payments which were made under this Agreement prior to the termination date, will not be returned.

• Any other term or condition of this Agreement notwithstanding, Customer may, in its sole discretion, terminate the Services being performed by Provider without further liability hereunder for any reason whatsoever by giving Contractor thirty (30) calendar days prior written notice thereof.
• Any other term or condition of this Agreement notwithstanding, Contractor may, in its sole discretion, terminate the Agreement without further liability hereunder for any reason whatsoever by giving Customer thirty (30) calendar days prior written notice thereof.

8.4. All additional services or works that are not directly provided by this Agreement or Supplements hereto, and their price, should be set out separately and signed in the additional Supplements to this Agreement.

8.5. This Agreement is made in a form of a single document in two identical copies – one copy for each party.

8.6 The Parties agree and acknowledge that the relationship between them is that of principal and independent contractor and not a partnership, joint venture or an employer and employee relationship.  Neither Party shall have the right to obligate the other in any way whatsoever. 

8.7. This Agreement may only be amended in writing signed by both Parties.  Contractor may not assign its rights and obligations under this Agreement to other party without the prior written consent of the Customer.  All provisions of this Agreement shall be binding upon and inure solely to the benefit of the Parties hereto, their heirs, legal representatives, successors (whether by consolidation, merger, or otherwise), and assigns. This Agreement may be executed in multiple counterparts (including by facsimile), each of which shall be deemed an original but all of which shall constitute one and the same agreement.  This Agreement represents the entire understanding between the Parties hereto with respect to the subject matter herein described and supersedes all previous representations, understandings or agreements, oral or written, between the Parties with respect to the subject matter.

9. INDEMNIFICATION

9.1.Contractor represents and warrants that neither the Software nor any materials or documentation delivered to the Customer in connection with the Software infringes upon any patent, copyright, trade secret or other intellectual property right of any third party and that the Contractor is the author of the Software, or otherwise has the exclusive right to transfer and assign to the Customer all right, title and interest in and to the Software without violating the rights of any third party.  Contractor further represents and warrants that there is currently no actual suit by any third party based upon the Software. 

10. CONFIDENTIALITY

10.1. Each Party hereby covenants and agrees that neither it (or he) nor its (or his) agents shall, during the term of this Agreement, or at any time thereafter, for any reason whatsoever, directly or indirectly, divulge or disclose for any purpose whatsoever to any person, any Confidential Information (as defined below) of which such party became aware by reason of the performance of its respective duties and obligations under this Agreement.  Each Party also covenants and agrees not to use, or make use of, any Confidential Information of the other Party, except as may be necessary to perform its or his respective duties and obligations under this Agreement. 

LEGAL ADDRESSES AND REQUISITES OF THE PARTIES

Customer

Повне найменування (Eng.)

Registration number: Код компанії

Address:Адреса місцезнаходження (юридична адреса) (Eng.)

Tel.: Телефон основний

E-mail: E-mail основний

Bank details:

Acc. No. № рахунку

IBAN IBAN

Bank Назва банку (Eng.)  Адреса банку (Eng.)

Contractor

Повне найменування (Eng.)

Registration number Код компанії

Address: Скорочене найменування (Eng.)

Tel.: Телефон основний

E-mail: E-mail основний

Bank details:

Acc. No. № рахунку

IBAN IBAN

Bank Назва банку (Eng.)  Адреса банку (Eng.)

SIGNATURES OF THE PARTIES:

On behalf of the Customer:                                                               

Посада представника (Eng.)

___________ ПІБ представника (Eng.)

On behalf of the Contractor:

Посада представника (Eng.)

___________ ПІБ представника (Eng.)

Exhibit A

to Agreement #Number of the Agreement  dd Sate of conclusion

This Supplementary Agreement was prepared to Services Agreement (“Agreement”) by and between

Повне найменування (Eng.) , registered under the laws of Країна реєстрації (Eng.) , with its registered office at Адреса місцезнаходження (юридична адреса) (Eng.) on the one hand, hereinafter referred to as “Customer”,

and

Повне найменування (Eng.) , registered under the laws of Країна реєстрації (Eng.) with its registered address Адреса місцезнаходження (юридична адреса) (Eng.) ,hereinafter referred to as “Contractor”, on the other hand, concluded this Agreement as follows:

1. To optimize the process of decision-making and approval of materials between the Parties authorized representatives of the Customer and the Contractor are approved. Contact of the authorized representatives of each Party as follows:

Authorized representative of the Contractor:

Authorized representative of the Customer:

2. This Amendment confirms that Parties agreed Software Requirements Specifications (SRS) to Software to be developed by the Contractor via email. The SRS document is confirmed by the official representative of the Customer.                                                     

Signatures of the Parties:

Посада представника (Eng.)

___________ ПІБ представника (Eng.)

On behalf of the Contractor:

Посада представника (Eng.)

___________ ПІБ представника (Eng.)