Agreement to Design and Construct Software

Agreement to Design and Construct Software

Agreement made on the , between of , referred to herein as Contractor, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Company.

For and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Contract Service

Contractor will design and construct certain software (describe software and purpose) , more specifically identified in Exhibit A which is attached to and made a part of this Agreement.

2. Time of Completion

The Contract Service will be completed on or before

3. The Contract Price

Company will pay Contractor for the Contract Service a sum not to exceed $, subject to the Schedule set forth in Paragraph 9 below. Payments of the Contract Price shall be made in installments upon completion of the requisite acceptance criteria set forth in Paragraph 9 below.

4. Services not to Conflict

Company understands that the Contractor may be engaged by one or more other institutions for the Contractor's services. In this regard, the Contractor will not become a party to any agreement that conflicts with the Contractor's performance of the Contract Service. Company may terminate this Agreement if in its reasonable opinion the performance of such services will conflict with its interests.

5. Confidentiality

Company wishes to maintain in confidence all information including data, technology, commercial and research strategies, trade secrets, inventions and know-how disclosed by Company to the Contractor, directly or indirectly, in written, oral or other tangible form, for the purpose of this Agreement or generated by the Contractor as a result of the performing the Contract Services (collectively, Confidential Information). In this regard, the Contractor will not disclose Confidential Information to others without the prior written consent of Company, except the Contractor will not be prevented from disclosing information that (i) can be shown by contemporaneous documentation to have been in the Contractor's possession prior to the disclosure by Company; (ii) at the time of the disclosure is, or thereafter becomes, through no fault of the Contractor, part of the public domain; or (iii) is furnished to the Contractor by a third party after the time of the disclosure without the breach of any duty to Company. In addition, the Contractor will keep separate and segregated from other work all documents, records, notebooks, correspondence and the like arising from the Contract Services. All right, title, and interest in Confidential Information, including that arising from the Contract Services, shall belong to Company and upon completion of the Contract Services or termination of this Agreement all tangible forms of Confidential Information, including copies thereof, whether prepared by the Contractor or other, will be delivered to Company. Contractor will not disclose to Company any information of third parties that the Contractor does not have the right to disclose.

6. Termination

This Agreement may be terminated by either party upon thirty (30) days written notice to the other party. This Agreement may be terminated by a non-breaching party, in addition to any other remedy, for a breach of any term of the Agreement effective upon written notice to the breaching party; upon which event all rights of the breaching party shall terminate.

7. Provisions to Survive

The terms and obligations of Paragraph 5 shall survive and remain in full force and effect after termination of this Agreement regardless of the cause of such termination.

8. Independent Contractor Status

Contractor is an independent contractor and is not an employee, servant, partner or joint venturer of Company. Company shall determine the services to be provided by Contractor, but Contractor shall determine the legal means by which it accomplishes the services in accordance with this Contract. Company is not responsible for withholding, and shall not withhold or deduct from the commissions FICA or taxes of any kind, unless such withholding becomes legally required. Contractor is not entitled to receive the benefits which employees of Company and is not entitled to receive and shall not be entitled to workers compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security on account of his services to Company. It is further understood that Contractor is free to contract for similar services to be performed for other (type of entity) or organizations while under Contract with Company.

9. Payment for Services and Expenses

For consultation related to the design, production and installation of and the actual software product , Company will pay for the product in installments upon completion of the requisite acceptance criteria.

A. Phase I

1. Goals: Completion of a core software module that runs on a Windows server.

2. Acceptance Criteria: The prototype runs on Windows Sever with MS-IIS WWW server software. Accepts ASCII data by file transfer over network from any platform (Mac, Unix, Windows 3.x, 95, 98, NT). Writes summary output files onto the server in ASCII format, accessible from any platform (Mac-OS, Unix, Windows 3.x, 95, 98, NT).

3. Payment: $

B. Phase II

1. Goals: Completion of a graphical user interface (GUI).

2. Acceptance Criteria: Users can submit data for data analysis from remote workstations, using a portable graphical user interface (GUI) implemented as a web page with HTML forms.

3. Payment: $

C. Phase III

1. Goals: Integration and testing of Phase I and Phase II modules, including the transfer of final products to Company.

2. Acceptance Criteria: Output files are produced in a specified format (e.g., Excel spreadsheet and HTML-web pages with integrated graphics). Multiple users can simultaneously submit data for analysis. Output files are compatible with back-end databases (e.g., Oracle). Documentation has been created and full source code has been transferred to Company.

3. Payment: $

10. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

11. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

12. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

13. Notices

Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

14. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

15. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

16. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

17. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

18. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

19. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

20. Compliance with Laws

In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

21. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.