Software Development Agreement
Software development agreement
DATE
[Date]
PARTIES
1.[[INDIVIDUAL NAME] of [address]] OR [[COMPANY NAME], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[PARTNERSHIP NAME], a partnership established under the laws of [England and Wales] having its principal place of business at [address]] (the "Developer"); and
2.[[INDIVIDUAL NAME] of [address]] OR [[COMPANY NAME], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[PARTNERSHIP NAME], a partnership established under the laws of [England and Wales] having its principal place of business at [address]] (the "Customer").
AGREEMENT
1.Definitions
1.1In this Agreement[, except to the extent expressly provided otherwise]:
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Assignment IP" means [all Intellectual Property Rights in the Software and the Documentation, excluding the Intellectual Property Rights in the Third Party Materials];
"Business Day" means any weekday other than a bank or public holiday in [England];
"Business Hours" means the hours of [09:00 to 17:00 GMT/BST] on a Business Day;
"Charges" means the following amounts:
(a)[the amounts specified in Paragraph 4 of Schedule 1 (Software Development Particulars)];
(b)[such amounts as may be agreed in writing by the parties from time to time]; and
(c)[amounts calculated by multiplying the Developer's [standard time-based charging rates (as notified by the Developer to the Customer before the date of this Agreement)] by the time spent by the Developer's personnel performing [the Services] (rounded [down by the Developer to the nearest quarter hour])];
[additional list items]
"Development Services" means [the design and development of the Software by the Developer];
"Documentation" means [the documentation for the Software produced by the Developer and delivered or made available by the Developer to the Customer];
"Effective Date" means [the date of execution of this Agreement];
"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
"Intellectual Property Rights" means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means [any services that the Developer provides to the Customer, or has an obligation to provide to the Customer, under this Agreement];
"Software" means the software identified in Paragraph 1 of Schedule 1 (Software Development Particulars)[, including [the Source Code of that software created by or on behalf of the Developer in the course of the provision of the Development Services and compiled to create the executable version of that software]];
"Software Defect" means a defect, error or bug in the Software having [an adverse effect] OR [a material adverse effect] on [the appearance, operation, functionality or performance of the Software][, but excluding any defect, error or bug caused by or arising as a result of:
(a)[any act or omission of the Customer or any person authorized by the Customer to use the Software];
(b)[any use of the Software contrary to the Documentation by the Customer or any person authorized by the Customer to use the Software];
(c)[a failure of the Customer to perform or observe any of its obligations in this Agreement]; and/or
(d)[an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification];]
"Software Specification" means [the specification for the Software set out in Paragraph 1 of Schedule 1 (Software Development Particulars) and in the Documentation][, as it may be varied by the written agreement of the parties from time to time];
"Source Code" means [software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code];
"Term" means [the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2]; and
"Third Party Materials" means the works and/or materials comprised in the Software, the Intellectual Property Rights in which are owned by a third party[, and which are specified in Paragraph 2 of Schedule 1 (Software Development Particulars) or which the parties agree in writing shall be incorporated into the Software].
2.Credit
2.1This document was created using a template from WISE LAW BV.
You must retain the above credit. Use of this document without the credit is an infringement of copyright. However, you can purchase from us an equivalent document that does not include the credit.
3.Term
3.1This Agreement shall come into force upon the Effective Date.
3.2This Agreement shall continue in force [indefinitely] OR [until:
(a)all the Services have been completed;
(b)all the Software has been delivered; and
(c)all the Charges have been paid in cleared funds,
upon which it will terminate automatically], subject to termination in accordance with Clause 13.
4.Development Services
4.1The Developer shall provide the Development Services to the Customer.
4.2The Developer shall [ensure] OR [use all reasonable endeavors to ensure] OR [use reasonable endeavors to ensure] that the Development Services are provided in accordance with the timetable set out in Paragraph 3 of Schedule 1 (Software Development Particulars), and that [a copy of the Software and Documentation is] delivered to the Customer[ [by means of a secure online file sharing system, on a USB memory stick or on optical disk]] in accordance with that timetable.
4.3The Customer acknowledges that a delay in the Customer performing its obligations under this Agreement may result in a delay in the performance of the Development Services; and subject to Clause 11.1 the Developer will not be liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
4.4The Developer shall ensure that [the Source Code, and any interpreted code, comprised in the Software created by or on behalf of the Developer during the provision of the Development Services] is [written to a professional standard, conforms with any coding standards document agreed between the parties, and incorporates sufficient commentary to enable a competent third party developer to understand, adapt, maintain and update the code].
4.5The Developer shall keep the Customer reasonably informed of the progress of the Development Services and, in particular, shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.
4.6The Developer shall [during the course of the Development Services at the request of the Customer] [supply to the Customer] OR [make accessible to the Customer] [a current development version of the Software] for the purposes of [enabling the Customer to assess the progress of the Development Services and provide feedback to the Developer regarding the Software].
5.Assignment
5.1On and from [the date of delivery of the Software to the Customer], the Developer hereby assigns to the Customer[ with full title guarantee] all of the Assignment IP.
OR
5.1On and from [the date of delivery of the Software to the Customer], the Developer hereby assigns to the Customer all of its right, title and interest in the Assignment IP.
5.2The assignment in Clause 5.1 is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals.
5.3The assignment in Clause 5.1 includes the right to bring proceedings in respect of past infringements of the assigned rights, and to recover damages or benefit from any other remedies in respect of any past infringements of the assigned rights.
6.Third Party Materials
6.1Subject to any express written agreement between the parties, the Developer shall ensure that the Third Party Materials are:
(a)[licensed to the Customer in accordance with the relevant licensor's standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms)];
(b)[licensed to the Customer on reasonable terms notified by the Developer to the Customer];
(c)[sub-licensed by the Developer to the Customer on reasonable terms notified in writing by the Developer to the Customer]; or
(d)[sub-licensed by the Developer to the Customer on the basis of a non-exclusive, worldwide, perpetual and irrevocable license to use the Third Party Materials in connection with the Software].
[additional list items]
7.Customer obligations
7.1Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Developer, or procure for the Developer, such:
(a)[co-operation, support and advice]; and
(b)[information and documentation],
as are reasonably necessary to enable the Developer to perform its obligations under this Agreement.
8.Charges
8.1The Customer shall pay the Charges to the Developer in accordance with this Agreement.
8.2If the Charges are based in whole or part upon the time spent by the Developer performing the Services, the Developer must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Developer any Charges in respect of Services performed in breach of this Clause 8.2.
8.3All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Developer].
8.4The Developer may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days'] written notice of the variation[ expiring [on any anniversary of the date of execution of this Agreement]][, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds[[ 2]% per annum over] the percentage increase, during the same period, in [the Retail Prices Index (all items) published by the UK Office for National Statistics]].
9.Payments
9.1The Developer shall issue invoices for the Charges to the Customer [from time to time during the Term] OR [on or after the invoicing dates set out in Paragraph 4 of Schedule 1 (Software Development Particulars)] OR [[dates for invoicing]].
9.2The Customer must pay the Charges to the Developer within the period of [30 days] following [the issue of an invoice in accordance with this Clause 9] OR [the receipt of an invoice issued in accordance with this Clause 9].
9.3The Customer must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Developer to the Customer from time to time).
9.4If the Customer does not pay any amount properly due to the Developer under this Agreement, the Developer may:
(a)charge the Customer interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b)claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
OR
9.4If the Customer does not pay any amount properly due to the Developer under this Agreement, the Developer may charge the Customer interest on the overdue amount at the rate of [2% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).[ The Developer acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 9.4 constitute a substantial remedy within the meaning of that Act.]
10.Warranties
10.1The Developer warrants to the Customer that:
(a)[the Developer has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement];
(b)[the Developer will comply with all applicable legal and regulatory requirements applying to the exercise of the Developer's rights and the fulfilment of the Developer's obligations under this Agreement]; and
(c)[the Developer has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement].
[additional list items]
10.2The Developer warrants to the Customer that:
(a)[the Software as provided will conform in all [material] respects with the Software Specification];
(b)[the Software will be supplied free from Software Defects[ and will remain free from Software Defects[ for a period of at least 12 months following the supply of the Software]]];
(c)[the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
(d)[the Software shall incorporate security features reflecting the requirements of good industry practice].
[additional list items]
10.3The Developer warrants to the Customer that the Software[ and Documentation][, when used by the Customer in accordance with this Agreement,] will not breach [any laws, statutes or regulations applicable under English law].
10.4The Developer warrants to the Customer that the Software[ and Documentation], when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
10.5If [the Developer reasonably determines, or any third party alleges, that the use of the Software by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights], the Developer may[ acting reasonably] at its own cost and expense:
(a)modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights[, providing that [any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification]]; or
(b)procure for the Customer the right to use the Software in accordance with this Agreement.
10.6The Customer warrants to the Developer that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
10.7All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11.Limitations and exclusions of liability
11.1Nothing in this Agreement will:
(a)limit or exclude any liability for death or personal injury resulting from negligence;
(b)limit or exclude any liability for fraud or fraudulent misrepresentation;
(c)limit any liabilities in any way that is not permitted under applicable law; or
(d)exclude any liabilities that may not be excluded under applicable law.
11.2The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this Agreement:
(a)are subject to Clause 11.1; and
(b)govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
11.3[Neither party shall be liable to the other party] OR [The Developer shall not be liable to the Customer] OR [The Customer shall not be liable to the Developer] in respect of any losses arising out of a Force Majeure Event.
11.4[Neither party shall be liable to the other party] OR [The Developer shall not be liable to the Customer] OR [The Customer shall not be liable
