Fill and Sign the Software Development Agreement 497331962 Form

Joint Software Development Agreement This Joint Software Development Agreement (this Agreement ) is made as of the       day of       , 20       , hereinafter known as the Effective Date , by and between       of       , (Name of Developer One) (Street Address)       , hereinafter called First Developer , and (City, County, State, Zip Code)       of       , (Name of Developer Two ) (Street Address, City, County, State, Zip Code) hereinafter called Second Developer of       . (Street Address, City, County, State, Zip Code) For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. Definitions. A. Agreement means this document, its attachments, all addenda, schedules, exhibits, and any amendments to the foregoing; B. Change of Control shall be deemed to have occurred if any person, legal entity or group comes to own, directly or indirectly, beneficially or of record, voting securities or any form of controlling interest which represents more than       % of the total (Number) voting power of one of the parties to this Agreement. C. Interface means the software interface and/or integration developed and owned by Second Developer which allows data to be transferred between First Developer's software and Second Developer's software. The Interface shall contain no proprietary or third-party technology. D. Term means the       -year period beginning on the Effective Date. (Number) 2. Scope of Agreement and Relationship. The parties shall jointly develop and maintain an integration data sheet defining the method and scope of the Interface development and the scope of this relationship within       days of the signing of this Agreement. Neither (Number) party shall represent that this Agreement or the relationship covers more than is specifically agreed to in the integration data sheet. Such integration data sheet may be amended only by the written agreement of the parties. 3. Trademarks and Logos. All trademarks, service marks, trade names or other words or symbols, hereinafter called the Marks, identifying each party's products and services are and will remain their respective exclusive property. Neither party will take any action that jeopardizes the other party's proprietary rights or acquire any rights in the Marks. Each party may Joint Software Development Agreement Page 1 of 8 use the other party's Marks in connection with their marketing, advertising and public relation activities under this Agreement, provided the party clearly and properly identifies the other party's claim of ownership to such Marks and provided each party receives prior written consent to each such use of the other party's Marks. The right to use the other party's Marks may be terminated at any time upon written notice. 4. First Developer's Additional Rights and Responsibilities. First Developer shall: A. Within the United States, provide Second Developer with potential sales leads for Second Developer's software only as such leads evolve as a by-product of the First Developer sales and in First Developer's existing install base; B. Provide Second Developer with an invitation to the First Developer User's Conference; C. List Second Developer's name on First Developer's Internet site and/or provide a hypertext link to Second Developer's Web site, which Second Developer consents to; D. Upon Second Developer providing appropriate information to First Developer, list Second Developer's software products and/or services in First Developer's product catalogs and other First Developer marketing materials, at First Developer's sole discretion; E. Upon Second Developer providing appropriate information to First Developer, list information about Second Developer and Second Developer's software products and/or services in First Developer's database and internal newsletters, at First Developer's sole discretion; F. Upon receipt of additional fees from Second Developer, provide Second Developer with access to First Developer's software related limited technical support, First Developer's training, consulting services, developer's conference and/or certification services; G. Provide Second Developer with access to the First Developer's alliance connection; H. Have the right to terminate this Agreement immediately if the Interface should be more than one release behind First Developer's generally available release product; I. Work with Second Developer to develop a quality initiative based on customer satisfaction; and J. Provide Second Developer with alliance contact listing. 5. Second Developer's Additional Rights and Responsibilities. Second Developer shall: Joint Software Development Agreement Page 2 of 8 A. Provide its customers with quality software products and services, including but not limited to technical support for Second Developer's software and the Interface, at no expense to First Developer; B. Develop, maintain, license and support the Interface at Second Developer's sole expense; C. Cause the Interface to remain current in all aspects of First Developer's software and technology; D. Disseminate information to Second Developer's sales and account management organizations concerning how to work with First Developer; E. Within       days of the end of each calendar quarter, provide First (Number) Developer with quarterly joint pipeline and closed business reports (which will, among other things, require Second Developer to provide customer names and fees received by Second Developer from the license of the Interface), in the form provided by First Developer; F. Within the Territory, provide First Developer with potential sales leads for First Developer software as such leads evolve as a by-product of Second Developer's sales cycle; G. Allow First Developer to use Second Developer's alliance program logo or such other logo Second Developer may designate from time to time, subject to Second Developer's written approval of each such use as First Developer has agreed to in the below Section entitled Trademarks and Logos ; H. List First Developer's name on Second Developer's Internet site and/or provide a hypertext link to First Developer's Web site, which First Developer consents to; I. Provide First Developer with access to Second Developer software and the Interface, and necessary related technical support, for testing purposes and promotional activities on mutually agreeable terms and conditions; J. Provide First Developer with alliance contact listing; K. Work with First Developer to develop a quality initiative based on customer satisfaction; L. Work with First Developer in the creation and maintenance of a Business Plan that reflects projected joint sales opportunities by quarter; and M. Not represent itself as an Agent, Reseller or any other representing authority of First Developer. Joint Software Development Agreement Page 3 of 8 6. Payments. Second Developer will pay First Developer       % if sale is in       days;       % if sale is in       days;       % if sale is after (Number) (Number)       days but less than       days of its net (excluding services and maintenance) (Number) (Number) software license revenue Second Developer receives from customer that is currently First Developer's customer. 7. Warranty Disclaimers and No Support Obligations. Neither party will make any representations or create any warranties, express or implied, concerning the other party's software products or services, other than those stated in their respective standard license agreements. Neither party shall have any obligation to license, install or provide technical support for the other's software products. During the Term and after the Term, the parties shall have no obligation to provide any technical support or maintenance for each other's software or any ( interface or interfaces) to the other party’s products developed by either party. Neither party shall represent or infer any availability of technical support or maintenance obligation from the other party to customers. 8. Approval of Press Releases. If either party desires to issue a press release or other public announcement concerning the relationship or dealings with Second Developer or First Developer, that party shall obtain prior written approval of any such press release or announcement from the other party. 9. Confidentiality. A. Both parties understand that the other party does not wish to receive any information, which may be considered confidential and/or proprietary to the other party or to any third party. To the extent any information disclosed to a party is considered confidential or proprietary, the parties agree to the mutual nondisclosure terms in the following paragraphs: 1. The term Confidential Information shall mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, computer programs, software, formulas, data, inventions, techniques, marketing plans, strategies and forecasts. 2. Both parties shall keep Confidential Information in strict confidence and shall not disclose it to any third party. Both parties shall only use Confidential Information in a manner consistent with the terms of this Agreement and only in furtherance of the mutually beneficial relationship between the parties. Receiving party's internal disclosure of Confidential Information shall be only to those employees or agents having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent with these nondisclosure terms. A party shall promptly Joint Software Development Agreement Page 4 of 8 notify the other of any unauthorized disclosure or use of Confidential Information by any person. B. This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: 1. Was in the possession of, or was rightfully known by Recipient without an obligation to maintain its confidentiality prior to receipt from the other party; 2. I s or becomes generally known to the public without violation of this Agreement; 3. Is obtained by Recipient in good faith from third party having the right to disclose it without an obligation on confidentiality; or 4. Is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information. C. The obligations under this Agreement with respect to Confidential Information shall continue for a period of       years from the date of each disclosure and (Number) shall survive the termination of this Agreement. All Confidential Information shall be returned to the other within       days of the provision of written notice (Number) requesting return of the Confidential Information. On termination of this Agreement, each party shall return to the other (or certify destruction of) all Confidential Information, including, but not limited to, software and related materials, in its possession provided by the other party for purposes of this Agreement 10. Term and Termination. A. Unless otherwise terminated as set forth in this Agreement, this Agreement shall be for a single       -year term and may be extended only as the parties mutually (Number) agree in writing. B. This Agreement may be terminated by either party upon       days' prior (Number) written notice without any further obligation to the other party except as set forth in Section 6. C. If either party undergoes a Change of Control, the other party shall have the option to immediately terminate this Agreement. D. In the event of expiration or termination of this Agreement, those sections which by their nature are intended by the parties to survive shall survive and continue in effect to the extent necessary to protect the rights of the parties. Joint Software Development Agreement Page 5 of 8 11. Ownership of Software. Nothing in this Agreement grants either party any right, title or claim of ownership in the intellectual property of the other party. All derivative works of First Developer's software shall be owned by First Developer, regard less of which party developed the derivative work. Second Developer assigns all right, title and interest in any work it develops which may constitute a derivative work of First Developer to First Developer. All derivative works of Second Developer's software shall be owned by Second Developer, regardless of which party developed the derivative work. First Developer assigns all right, title and interest in any work it develops which may constitute a derivative work of Second Developer to Second Developer. Any work jointly developed by the parties shall be owned jointly without obligation of accounting to the other. 12. No Extrinsic Assurances. Each party represents and warrants that, in entering into this Agreement and from time to time during the term of this Agreement, it does not and will not rely on any promises, inducements, or representations made by the other party with respect to the subject matter of this Agreement, nor on the expectation of any other business dealings with the other party, now or in the future, except as specifically provided in this Agreement. 13. Status of Developers. Second Developer is an independent contractor under this Agreement and nothing in this Agreement authorizes either party to act as an agent for the other or bind the other to any transaction. It is expressly understood that this Agreement does not establish a franchise relationship, legal partnership or joint venture. Each party is solely responsible for its employees, including terms of employment, wages, hours, taxes and any required insurance. 14. Freedom of Action. Nothing in this Agreement shall be construed as prohibiting or restricting either party from independently developing or acquiring and marketing materials, programs or software which are competitive with those of the other party, (provided neither party uses any confidential information of the other party in doing so), or from entering into the same or similar agreements with others. 15. Limitation of Liability. In the event of failure of either party to fulfill any of its obligations under this Agreement, the exclusive remedy of the other party under this Agreement shall be to request performance of such obligation. If such performance is not rendered, the other party's sole remedy shall be to terminate this Agreement. However, either party shall be entitled to enforce its rights regarding patents, copyrights, trademarks or trade names as provided for in this Agreement, by any appropriate action, including actions for damages and equitable relief. IN NO EVENT SHALL EITHER PARTY HAVE ANY RIGHT HEREUNDER AGAINST THE OTHER FOR ANY SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 16. No Assignment or Delegation. This Agreement may not be assigned or transferred by either party (by operation of law or otherwise), without the express written consent of the other party. For purposes of the preceding sentence, the term assignment includes the sale or transfer of all or a substantial portion of the assets of either party. Second Developer may not hire another Joint Software Development Agreement Page 6 of 8 person or entity (other than employees) to perform any of its obligations under this Agreement, including, but not limited to, the development of any ( interface or interfaces) or integration to either party's software, without either party's prior written consent. 17. 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. 18. 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. 19. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of       . (Name of State) 20. 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. 21. 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. 22. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, 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. 23. 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. Notwithstanding the foregoing, First Developer will, from time to time, establish internal procedures for administering this Agreement and, although some of these procedures may not be included in this Agreement, Second Developer agrees to comply with them to the extent they do not alter this Agreement. 24. 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. Joint Software Development Agreement Page 7 of 8 25. General . Each party shall bear its own costs and expenses. Transmitted copies are considered documents equivalent to original documents. For the purpose of this Agreement, transmitted copies means reproduced documents that are transmitted via photocopy, facsimile or process that accurately transmits the original documents. 26. 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. 27. 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 One) (Name of Developer Two) By: By: (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation)             (Signature of Officer) (Signature of Officer) Joint Software Development Agreement Page 8 of 8