Software Development Agreement

Agreement with Computer Programmer

Agreement made on the day of day of , 20 , between

, of
(Name of Programmer)                                                   (Street Address, City, County, State, Zip Code)

referred to herein as Programmer, and , a corporation
(Name of Company)

organized and existing under the laws of the state of , with its
principal office located at , referred to herein as
Company.
(Name of State)                                                   (Street Address, City, County, State, Zip Code)

Whereas, Company desires to obtain the services of Programmer to provide certain computer-programming services on an as-needed basis, including services related to the design and development of certain computer software described in Exhibit A, attached hereto and made a part hereof, such software, including all know-how, trade secrets, copyrights, and patentable inventions, being hereinafter referred to collectively as the Program Materials);

Whereas, Company and Programmer acknowledge that the Program Materials are anticipated to be integrated into and become part of certain proprietary products owned by Company, and thereafter to be licensed by Company to third parties; and

Whereas, both Company and Programmer wish to set forth in writing the terms and conditions of their dealings, including rights as to the Program Materials;

Now, therefore, for and in consideration of the mutual covenants and conditions hereinafter set forth, the parties hereby agree as follows:

I. Services of Programmer.

A. Pursuant to the terms and conditions set forth in this Agreement, Company engages Programmer to perform the duties set forth in the attached Exhibit B, during the term of this Agreement, on an as-needed basis, and Programmer accepts such engagement. Unless otherwise mutually agreed, all services shall be performed at Company's facilities. Programmer agrees to use Programmer's best efforts, at a level consistent with persons having similar education, experience, and expertise in the software industry, in the performance of the services called for by this Agreement.

B. Nothing contained in this Agreement shall be deemed to preclude Company from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by Programmer or from independently developing or acquiring materials or programs that are similar to or competitive with, the services provided under this Agreement.

II. Term of Agreement.

A. The term of this Agreement shall be for year(s) from the date first above written. Company anticipates that Company will require Programmer's services for not more than days of hours each per month. However, the actual services shall consist of specific tasks or results to be achieved and shall be performed at mutually agreeable times on an as-needed basis.

III. Independent Contractor. Programmer agrees that Programmer shall be acting as an independent contractor and shall not be considered or deemed to be an agent, employee, joint venturer, or partner of Company. Programmer shall have no authority to contract for or bind Company in any manner and shall not represent itself as an agent of Company or as otherwise authorized to act for or on behalf of Company. Programmer shall have no status as employee or any right to any benefit that Company grants Company's employees.

IV. Compensation. Company agrees to pay Programmer at the rate of dollars per for each of services rendered by Programmer during the term of this Agreement. Programmer shall invoice Company monthly for services performed during the preceding month; provided, however, that, unless otherwise agreed in writing by an authorized officer of Company, Company's maximum liability hereunder for all services performed during the term of this Agreement shall not exceed dollars

V. Obligation for Expenses. This Agreement does not entitle Programmer to any reimbursement of expenses, and Programmer shall bear sole responsibility for any expenses Programmer may incur at any time and in any connection with Programmer's performance pursuant to this Agreement.

VI. Ownership of Program Materials.

A. Programmer agrees that all Program Materials, reports, and other data or materials generated or developed by Programmer under this Agreement or furnished by Company to Programmer shall be and remain the property of Company. Programmer specifically agrees that all copyrightable material generated or developed under this Agreement shall be considered works made for hire and that such material shall, upon creation, be owned exclusively by Company. To the extent that any such material, under applicable law, may not be considered works made for hire, Programmer hereby assigns to Company the ownership of copyright in such materials, without the necessity of any further consideration, and Company shall be entitled to obtain and hold in Company's own name all copyrights in respect of such materials.

B. If and to the extent Programmer may, under applicable law, be entitled to claim any ownership interest in the Program Materials, reports, and other data or materials generated or developed by Programmer under this Agreement, Programmer transfers, grants, conveys, assigns, and relinquishes exclusively to Company all of Programmer's right, title, and interest in and to such materials, under patent, copyright, trade secret, and trademark law, in perpetuity or for the longest period otherwise permitted by law.

C. Programmer shall perform any acts that may be deemed necessary or desirable by Company to evidence more fully transfer of ownership of all materials designated under this Section VI to Company to the fullest extent possible, including but not limited to the making of further written assignments in a form determined by Company.

D. To the extent that any preexisting rights are embodied or reflected in the Program Materials, Programmer grants to Company the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to (i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such preexisting rights and any derivative works thereof and (ii) authorize others to do any or all of the foregoing.

E. Programmer hereby represents and warrants that Programmer has full right and authority to perform Programmer's obligations and grant the rights and licenses herein granted, and that Programmer has neither assigned nor otherwise entered into an agreement by which Programmer purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with Programmer's obligations under this Agreement. Programmer covenants and agrees that Programmer shall not enter into any such agreements.

VII. Protection of Proprietary Materials.

A. From the date of execution of this Agreement and for as long as the information or data remain Trade Secrets, Programmer shall not use, disclose, or permit any person to obtain any Trade Secrets of Company, including any materials developed or generated pursuant to this Agreement (whether or not the Trade Secrets are in written or tangible form), except as specifically authorized by Company.

B. Trade Secrets shall mean a whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, or improvement relating to the development, design, construction, and operation of that is valuable and not generally known to competitors of Company.

C. Irreparable harm should be presumed if Programmer breaches any covenant in this Agreement for any reason. This Agreement is intended to protect Company's proprietary rights pertaining to the Program Materials, and any misuse of such rights would cause substantial harm to Company's business. Therefore, Programmer agrees that a court of competent jurisdiction should immediately enjoin any breach of this Agreement, upon a request by Company.

VIII. Return of Materials. Upon Company's request, but in any event upon termination of this Agreement, Programmer shall surrender to Company all memoranda, notes, records, drawings, manuals, computer software, and other documents or materials (and all copies of same) pertaining to the Program Materials, reports, and other data or materials generated or developed by Programmer or furnished by Company to Programmer, including all materials embodying any Trade Secrets. This Section VIII is intended to apply to all materials made or compiled by Programmer, as well as to all materials furnished to Programmer by Company or by anyone else that pertain to the Program Materials.

IX. Termination. This Agreement may be terminated by either party upon days' written notice to the other party. In the event of termination under this section by either party prior to the expiration of the term hereof, Company shall be obligated to compensate Programmer at the rate established by Section IV for services performed prior to the date of such termination.

X. 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.

XI. 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.

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

XIII. 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.

XIV. 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.

XV. 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.

XVI. 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.

XVII. 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.

XVIII. 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.

XIX. 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.

XX. 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.