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Free Template: Software Development Agreement (Pro-Developer)

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DEVELOPER AGREEMENT

This Developer Agreement (the “Agreement”) is entered into as of _________________ (the “Effective Date”), by and between ________________ (the “Developer”) and ____________________ (the “Client”). The Developer and Client are each referred to herein individually as a “Party” and collectively as the “Parties.”

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

  1.  SERVICES 

Developer will provide the following Services:

  1. _____________________________________ for the amount of $_____ [per web page, per hour, etc].
  2. _____________________________________ for the amount of $_____ [per web page, per hour, etc]. 
  3. _____________________________________ for the amount of $_____ [per web page, per hour, etc].
  4. _____________________________________ for the amount of  $_____ [per web page, per hour, etc]. 
  5. _____________________________________ for the amount of $_____ [per web page, per hour, etc].
  6. Additionally,  Client agrees to reimburse Developer for any expenses necessary in completion of the Services: (e.g. fonts, proofs, software, stock images, etc.).
  1. PAYMENT TERMS
  1. Client shall pay Developer  $_______________, as a deposit for project commencement. 
  2. All invoices are payable within 14 days of receipt. All overdue balances shall incur a late fee of 1.5% per month or the highest rate allowed by law, whichever is smaller, until paid in full.
  3. Parties understand that adequate communication between the parties is indispensable to the ultimate success of the project. Client agrees to promptly respond to Developer’s reasonable inquiries and to return requested materials by the requested date.
  4. Developer reserves the right to withhold, or erase the work product, remove all web content from the Internet if payment in full is not made. Client must contact Developer to discuss anticipated payment issues before payment becomes overdue. 
  1. MAINTENANCE, CONSULTATIONS, ADDITIONAL SERVICES

Maintenance and services not listed in Article 1 are not within the scope of this Agreement. Separate Maintenance Agreements must be negotiated based on Client’s specific needs. Consultations related to the Services are free until the Services have been completed. Developer’s hourly service charge will apply to resolve maintenance issues and provide consultations unrelated to bugs or Developer’s errors after the Services have been completed.

  1. CLIENT REVISIONS 
  1. Significant modifications are not included in the initial Agreement price and will be billed at Developer’s hourly rates.
  2. Some examples of significant modifications include, but are not limited to: 
  1. Developing a new structure to accommodate a substantial redesign. 
  2. Replacing more than 75% of the text on any given page. 
  3. Creating a new navigation structure. 
  4. Significantly reconfiguring Client’s account or database integrity.
  5. [INSERT EXAMPLES OF SIGNIFICANT MODIFICATIONS (SERVICES YOU DON’T WANT TO DO FOR FREE)]
  6. Any other services that would require Developer to spend, in aggregate, an additional 25% or more of time or resources to the total amount the Developer had reasonably anticipated at the signing of the Agreement. Client understands that this paragraph means that even minor changes can add up to a “significant modification” (which is billed extra) if the Developer is required to invest an additional 25% or more in time or resources to the initially anticipated scope of project.
  1. OWNERSHIP
  1. Work Product. Work product of Developer which are delivered and paid for under this Agreement shall become the property of Client only upon payment of Developer’s fees in full. Upon receipt of payment in full, Developer shall irrevocably transfer and assign to Client all right, title and interest in and to the Developer work product, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”) therein.  At Client’s request and expense, during and after the term of this Agreement, Developer will assist and cooperate with Client in all respects, and will execute documents, and will take such further acts reasonably requested by Client to enable Client to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Developer work product. 
  2. Pre-Existing Intellectual Property. Notwithstanding any provision of this Agreement to the contrary, any routines, methodologies, processes, libraries, tools or technologies created, adapted or used by Developer in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of Developer, and Customer shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Products. In addition, notwithstanding any provision of this Agreement to the contrary, Developer shall be free to use any ideas, concepts, or know-how developed or acquired by Developer during the performance of this Agreement to the extent obtained and retained by Developer’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described in Section 4.1 above, nothing in this Agreement shall be construed to preclude Developer from using the Development Tools for use with third parties for the benefit of Developer.
  1. DEVELOPER REPRESENTATIONS
  1. No Pre-existing Obligations.   Developer represents that Developer has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with or that would hinder Developer’s performance of obligations under this Agreement.
  2. Performance Standard.   Developer represents that Services will be performed in a thorough and professional manner, consistent with high professional and industry standards by individuals with the requisite training, background, experience, technical knowledge and skills to perform Services.
  3. Non-Infringement.  Developer represents that the Developer work product will not infringe, misappropriate or violate the rights of any third party, including, without limitation, any Intellectual Property Rights or any rights of privacy or rights of publicity, except to the extent any portion of the Developer work product is created, developed or supplied by Client or by a third party on behalf of Client. Developer will not incorporate any proprietary information, inventions, intellectual property, or other third party material into any work product prepared for the Client.
  4. Non-Solicitation of Personnel.  During the term of this Agreement and for a period of one (1) year thereafter, Developer will not directly or indirectly solicit the services of any Client employee or consultant for Developer’s own benefit or for the benefit of any other person or entity.
  1. CLIENT CONTENT

Client represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Developer for inclusion in Developer work product are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by Client. 

  1. DISCLAIMER AND LIMITATION OF LIABILITY
  1. Except as expressly provided for in this Agreement, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SERVICES. IN NO EVENT SHALL THE DEVELOPER’S LIABILITY EXCEED THE AMOUNTS COLLECTED FROM CLIENT FOR SERVICES.
  2. IN NO EVENT WILL THE DEVELOPER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES OR ITEMS OBTAINED THROUGH THE DEVELOPER, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
  1. NONDISCLOSURE
  1. Scope of Confidentiality. Each party agrees to regard and preserve as confidential all technical, financial and business information related to the business and activities of the other party (the “Disclosing Party”), that may be obtained by such party (the “Receiving Party”) from any source or may be developed as a result of this Agreement (“Confidential Information” of the Disclosing Party). The Receiving Party agrees to hold such information in trust and confidence for the Disclosing Party and not to disclose such Confidential Information to any person, firm or enterprise, or use, directly or indirectly, any such Confidential Information for its own benefit or the benefit of any other party, unless otherwise authorized in writing by the Disclosing Party, and even then, to limit access to and disclosure of such Confidential Information to the Receiving Party’s employees on a need-to-know basis only. Confidential Information shall not be considered confidential if such information is: (i) already known by the Receiving Party free of any restriction at the time it is obtained as evidenced by written records of the Receiving Party; (ii) subsequently learned by the Receiving Party from an independent third party having the right to make such disclosure, free of any restriction; or (iii) becomes available publicly by means other than a wrongful act of the Receiving Party.
  2. Remedy. Each party acknowledges and agrees that, in the event of a breach or threatened breach of any of the foregoing provisions, the other party will have no adequate remedy in damages and, accordingly, shall be entitled to injunctive relief against such breach; provided, however, that no specification of a particular legal or equitable remedy shall be construed as a waiver, prohibition or limitation of any other legal or equitable remedies in the event of a breach hereof.
  1. GOVERNING LAW AND JURISDICTION
  1. This Agreement shall be governed and construed in accordance with the laws of the State of _______________________. 
  2. Enforcement of this Agreement is solely in the parties’ discretion, and failure to enforce the Agreement in some instances does not constitute a waiver of the party’s right to enforce it in other instances.
  3. ARBITRATION AND WAIVER OF JURY TRIAL

Any dispute, controversy or claim arising out of your use of this website shall, upon the request of any party involved, be submitted to and settled by binding arbitration in ________________________ (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved), pursuant to the rules then in effect of the American Arbitration Association.  Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, State or Federal, having jurisdiction.  The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its own experts, evidence and counsel. Client understands that THIS CLAUSE MEANS PARTIES WAIVE THEIR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

  1. TERM AND TERMINATION
  1. This Agreement continues in force for a period of two (2) years of signing, unless sooner terminated in accordance with this Section.
  2. Either party may terminate this Agreement by giving ten (10) business days written notice to the other of such termination. In the event that any Service is postponed or terminated at the request of the Client, Developer shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this Agreement. If additional payment is due, this shall be payable within 14 days of the Client’s written notification to stop work. In the event of termination, the Client shall also pay any expenses incurred by Developer and the Developer shall own all rights to the Services performed. The Client shall be liable for all collection of legal fees necessitated by default in payment.
  3. No refunds will be issued upon completion of the project. However, Developer strives to provide highest quality of service and will make a reasonable number of attempts to correct unsatisfactory results.
  1. FORCE MAJEURE

Neither party shall be liable for failure to perform, or for any delay in performing, its obligations under this Agreement when such failure or delay is due to force majeure, provided the party claiming the existence of force majeure gives notice to the other party within fourteen (14) days of the commencement or continuance of the circumstances which constitutes such force majeure.  The term “force majeure” means events beyond the control of the applicable party, namely strikes, lockouts, fires, floods, delays in transportation or delivery, acts of God or the public enemy, embargoes, wars, declared or undeclared, riots, civil commotion, interference by civil or military authorities, terrorist acts, or governmental actions.  Neither party shall be relieved from performing any pending obligations under the Agreement when the existence of force majeure has been eliminated or terminated. 

  1. INDEPENDENT CONTRACTOR

Developer, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall be construed as constituting an employment, joint venture, or partnership relationship between Developer and Client.  Developer shall be solely responsible for and shall hold Client harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.

  1. SUBCONTRACTING

Developer can assign subcontractors to assist with the timely performance of the Services.

  1. NO THIRD PARTY BENEFICIARIES

This Agreement shall not confer upon any person (other than the parties hereto and their permitted assigns) any rights, benefits or remedies of any kind, and no such person shall be deemed a third party beneficiary under or by reason of this Agreement.

  1. SEVERABILITY

Should any part of these Terms of Use be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of these Terms of Use should not invalidate the remaining portions thereof, and they shall remain in full force and effect.

  1. NON-WAIVER

The waiver by either party of any breach of any provision of this Agreement by the other shall not be construed as a waiver of any subsequent breach by the other or as a waiver of any other clause of this Agreement.

  1. ENTIRE UNDERSTANDING

This Agreement constitutes the sole agreement between Developer and Client regarding the Services. Both parties warrant that they have read and understood the terms set forth in this agreement. 

CLIENT DEVELOPER

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