Fill and Sign the Custom Software Development Agreement Form

Custom Software Development Agreement Agreement made on the _________________ (date) , between _______________________ (Name of Developer) , a corporation organized and existing under the laws of the state of ______________, with its principal office located at ____________________________________________________________________ ____________ (street address, city, state, zip code) , referred to herein as Developer, and ______________________ (Name of Customer) , a corporation organized and existing under the laws of the state of ______________, with its principal office located at ____________________________________________________________________ ____________ (street address, city, state, zip code) , referred to herein as Customer . Whereas, Developer has acquired specific expertise in the development of application software in the field of (description of field) _________________________ __________________________________________________________ ; and Whereas, Customer has a need for certain application software as identified below; and Whereas, Developer is ready, willing, and able to undertake the development of such software and to grant Customer a license to utilize same on the terms and conditions set forth in this Agreement; and Whereas, Customer desires to have developed and to acquire a license to utilize the software on the terms and conditions set forth below. Now, therefore, 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. Purpose of Agreement Customer desires to retain Developer as an independent contractor to develop the computer software (the Software ) described in the Functional Specification contained in Exhibit A attached to and made part of this Agreement . Developer is ready, willing and able to undertake the development of the Software and agrees to do so under the terms and conditions set forth in this Agreement . 2. Preparation of Development Plan Developer shall prepare a development plan (the Development Plan ) for the Software , satisfying the requirements set forth in the Functional Specifications. The Development Plan shall include:  A detailed Specifications for the Software ;  A listing of all items to be delivered to Customer under this Agreement (the Deliverables ); and  A delivery schedule containing a delivery date for each Deliverable; and Developer shall deliver the Development Plan to Customer by _______________ (date) . Customer shall have Five (5) days to review the Development Plan. Upon approval of the Development Plan by Customer, it will be marked as Exhibit B and will be deemed by both parties to have become a part of this Agreement and will be incorporated by reference. Developer shall then commence development of Software that will substantially conform to the requirements set forth in the Development Plan. 3. Payment Client shall pay Consultant a fixed fee of $___________, in _____ (number) installments on the following dates (set forth dates) ___________________________ _____________________________________________________________________ . 4. Payment of Developer's Costs Customer shall reimburse Developer for the cost of any development software or commercial software libraries the Developer deems necessary to complete this project, subject to approval by Customer. 5. Changes in Project Scope If at any time following acceptance of the Development Plan by Customer, Customer should desire a change in Developer's performance under this Agreement that will alter or amend the Specifications or other elements of the Development Plan, Customer shall submit to Developer a written proposal specifying the desired changes. Developer will evaluate each such proposal at its standard rates and charges. Developer shall submit to Customer a written response to each such proposal within ten (10) working days following receipt thereof. Developer's written response shall include a statement of the availability of Developer's personnel and resources, as well as any impact the proposed changes will have on the contract price, delivery dates or warranty provisions of this Agreement . 6. Acceptance Testing of Software Customer shall have Fifteen (15) days from the date of delivery of the Software in final form to inspect, test and evaluate it to determine whether the Software satisfies the acceptance criteria in accordance with procedures set forth in Functional Specification, or as established by Developer and approved by Customer prior to testing. If the Software does not satisfy the acceptance criteria, Customer shall give Developer written notice stating why the Software is unacceptable. Developer shall have fifteen (15) days from the receipt of such notice to correct the deficiencies. Customer shall then have (15) days to inspect, test and evaluate the Software . If the Software still does not satisfy the acceptance criteria, Customer shall have the option of either (1) repeating the procedure set forth above, or (2) terminating this Agreement pursuant to the section of this Agreement entitled Termination. If Customer does not give written notice to Developer within the initial 15-day inspection, testing and evaluation period or any extension of that period, that the Software does not satisfy the acceptance criteria, Customer shall be deemed to have accepted the Software upon expiration of such period. 7. Ownership of Software Developer assigns to Customer its entire right, title and interest in anything created or developed by Developer for Customer under this Agreement ( Work Product ) including all patents, copyrights, trade secrets and other proprietary rights. This assignment is conditioned upon full payment of the compensation due Developer under this Agreement . Developer shall execute and aid in the preparation of any documents necessary to secure any copyright, patent, or other intellectual property rights in the Work Product at no charge to client. However, Customer shall reimburse Developer for reasonable out-of-pocket expenses. 8. Warranties THE SOFTWARE FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN AS IS BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE . THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9. Confidentiality A. During the term of this Agreement and for 6 months afterward, Developer will use reasonable care to prevent the unauthorized use or dissemination of Customer's confidential information. Reasonable care means at least the same degree of care Developer uses to protect its own confidential information from unauthorized disclosure. B. Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to Consultant within 15 days of disclosure. C. Confidential information does not include information that:  The Developer knew before Customer disclosed it;  Is or becomes public knowledge through no fault of Consultant;  Developer obtains from sources other than Customer who owe no duty of confidentiality to Customer, or  Developer independently develops. 10. Term of Agreement This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement. 11. Termination of Agreement Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of 30 days after written notice of such breach is sent to the other party. If Developer terminates this Agreement because of Customer's default, all of the following shall apply: A. Customer shall immediately cease use of the Software; B. Customer shall, within 10 days of such termination, deliver to Developer all copies and portions of the Software and related materials and documentation in its possession furnished by Developer under this Agreement; C. All amounts payable or accrued to Developer under this Agreement shall become immediately due and payable; and D. All rights and licenses granted to Customer under this Agreement shall immediately terminate. 12. Developer an Independent Contractor, and neither Developer nor Developer's staff is, or shall be deemed, Client's employees. In its capacity as an independent contractor, Developer agrees and represents, and Customer agrees, as follows: A. Developer has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, if any; B. Developer has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed; C, Developer has the right to perform the services required by this Agreement at any place or location and at such times as Developer may determine; D. Developer will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Consultant's work must be performed on or with Customer's computer or existing software; E. The services required by this Agreement shall be performed by Developer, or Developer's staff, and Customer shall not be required to hire, supervise or pay any assistants to help Developer; F. Developer is responsible for paying all ordinary and necessary expenses of its staff; G. Neither Developer nor Developer's staff shall be required to devote full- time to the performance of the services required by this Agreement; and H. Customer shall not withhold from Developer's compensation any amount that would normally be withheld from an employee's pay. 13. No Agency Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. 14. 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. 15. 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. 16. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of _______________. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. WITNESS our signatures as of the day and date first above stated. __________________________ ________________________ (Name of Developer) (Name of Customer) By:____________________________ By:_______________________________ ____________________________ _____________________________ (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation) ___________________________ ____________________________ (Signature of Officer) (Signature of Officer) Attach Exhibits