Software Development Agre...

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Software Development Agreement
This Software Development Agreement is made on [AGREEMENT DATE] (the "Effective Date") between [PARTY A NAME], [whose principal place of residence is at / a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY A ADDRESS]] (the "[PARTY A ABBREVIATION]") and [PARTY B NAME], [whose principal place of residence is at / a [CORPORATE JURISDICTION] corporation with its principal place of business at] [PARTY B ADDRESS]] (the "[PARTY B ABBREVIATION]").
(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)

Development Services. [PARTY A] shall provide [PARTY B] with certain software according to [PARTY B]'s Specifications (the "[DELIVERABLE]") and maintenance, training, and support services in connection with the [DELIVERABLE].

Specifications. Promptly after the Effective Date, [PARTY B] shall
define the specifications of the [DELIVERABLE] and the schedule for its development and delivery (the "Specifications"), and
deliver to [PARTY A] a written copy of the Specifications. 

Development. [PARTY A] shall use reasonable efforts to design, develop, and implement the [DELIVERABLE] according to the Specifications.

Make [DELIVERABLE] Available for Download. On the later of the Effective Date and [PARTY B]'s first payment for the [DELIVERABLE], [PARTY A] shall make the [DELIVERABLE] available to [PARTY B] in an electronic, downloadable format on [PARTY A]'s website, at [INSERT URL OF WEBSITE].

Acceptance and Rejection
Inspection Period. [PARTY B] will have [INSPECTION PERIOD] Business Days' after [PARTY A] delivers the [DELIVERABLE] to inspect and test the [DELIVERABLE] to ensure it meets the Acceptance Criteria (the "Inspection Period").
Acceptance. If in [PARTY B]'s opinion the [DELIVERABLE] meets the Acceptance Criteria, [PARTY B] shall accept the [DELIVERABLE] and notify [PARTY A] that it is accepting the [DELIVERABLE].
Deemed Acceptance. [PARTY B] will be deemed to have accepted the [DELIVERABLE] if
[PARTY B] fails to notify [PARTY A] on or before the expiration of the Inspection Period, or
if during the Inspection Period, [PARTY B] sells or attempts to sell, runs, or otherwise uses the [DELIVERABLE] beyond what is necessary for inspection and testing and in a way a reasonable person would consider consider consistent with [PARTY B] having accepting ownership of the [DELIVERABLE] from [PARTY A].
Rejection. If in [PARTY B]'s opinion, the [DELIVERABLE] fails in any way to meet the Acceptance Criteria, [PARTY B] may reject the [DELIVERABLE] by delivering to [PARTY A] a written list detailing each failure to satisfy the Acceptance Criteria.
Opportunity to Cure. If [PARTY B] rejects the [DELIVERABLE], [PARTY A] will have [NUMBER OF OPPORTUNITIES TO CURE] opportunities to promptly cure each failure in the [DELIVERABLE] and re-deliver the [DELIVERABLE] to [PARTY B] to re-inspect and test.
Continued Failure to Cure. If in [PARTY B]'s opinion, [PARTY A]'s corrections fail to satisfy the Acceptance Criteria [NUMBER OF OPPORTUNITIES TO CURE] times, [PARTY B] may either
terminate this agreement, or
adjust the Acceptance Criteria, and
require [PARTY A] to pay the Adjustment Fee.
Adjustment Fee. "Adjustment Fee" means $[ADJUSTMENT FEE].
Liquidated Damages Statement. [PARTY A] acknowledges that
the actual damages likely to result from the late delivery of the [DELIVERABLE], due to [PARTY A]'s failure to comply with the Acceptance Criteria, are difficult to estimate when entering this agreement and would be difficult for [PARTY B] to prove,
the parties intend that [PARTY A]'s payment of the Adjustment Fees would serve to compensate [PARTY B] for [PARTY A]'s failure to timely deliver [DELIVERABLE] that complies with the Acceptance Criteria, not to serve as punishment for any such breach by [PARTY A].
Acceptance Criteria. "Acceptance Criteria" means the specifications the [DELIVERABLE] must meet, [as agreed on by the parties in writing / as listed in [ATTACHMENT], attached to this agreement].

Acceptance and Rejection
Inspection Period. [PARTY B] will have [INSPECTION PERIOD] Business Days' after [PARTY A] delivers the [DELIVERABLE] to inspect and test the [DELIVERABLE] to ensure it meets the Acceptance Criteria (the "Inspection Period").
Acceptance. If in [PARTY B]'s opinion the [DELIVERABLE] meets the Acceptance Criteria, [PARTY B] shall accept the [DELIVERABLE] and notify [PARTY A] that it is accepting the [DELIVERABLE].
Deemed Acceptance. [PARTY B] will be deemed to have accepted the [DELIVERABLE] if
[PARTY B] fails to notify [PARTY A] on or before the expiration of the Inspection Period, or
if during the Inspection Period, [PARTY B] sells or attempts to sell, runs, or otherwise uses the [DELIVERABLE] beyond what is necessary for inspection and testing and in a way a reasonable person would consider consider consistent with [PARTY B] having accepting ownership of the [DELIVERABLE] from [PARTY A].
Rejection. If in [PARTY B]'s opinion, the [DELIVERABLE] fails in a material way to meet the Acceptance Criteria, [PARTY B] may reject the [DELIVERABLE] by delivering to [PARTY A] a written list detailing each failure to satisfy the Acceptance Criteria.
Opportunity to Cure. If [PARTY B] rejects the [DELIVERABLE], [PARTY A] will have [NUMBER OF OPPORTUNITIES TO CURE] opportunities to promptly cure each failure in the [DELIVERABLE] and re-deliver the [DELIVERABLE] to [PARTY B] to re-inspect and test.
Continued Failure to Cure. If in [PARTY B]'s opinion, [PARTY A]'s corrections fail to satisfy the Acceptance Criteria [NUMBER OF OPPORTUNITIES TO CURE] times, [PARTY B] may either
terminate this agreement, or
adjust the Acceptance Criteria, and
require [PARTY A] to pay the Adjustment Fee.
Adjustment Fee. "Adjustment Fee" means $[ADJUSTMENT FEE].
Liquidated Damages Statement. [PARTY A] acknowledges that
the actual damages likely to result from the late delivery of the [DELIVERABLE], due to [PARTY A]'s failure to comply with the Acceptance Criteria, are difficult to estimate when entering this agreement and would be difficult for [PARTY B] to prove,
the parties intend that [PARTY A]'s payment of the Adjustment Fees would serve to compensate [PARTY B] for [PARTY A]'s failure to timely deliver [DELIVERABLE] that complies with the Acceptance Criteria, not to serve as punishment for any such breach by [PARTY A].
Acceptance Criteria. "Acceptance Criteria" means the specifications the [DELIVERABLE] must meet, [as agreed on by the parties in writing / as listed in [ATTACHMENT], attached to this agreement].

Acceptance and Rejection
Inspection Period. [PARTY B] will have [INSPECTION PERIOD] Business Days' after [PARTY A] delivers the [DELIVERABLE] to inspect and test the [DELIVERABLE] to ensure it meets the Acceptance Criteria (the "Inspection Period").
Acceptance. If in [PARTY B]'s opinion the [DELIVERABLE] meets the Acceptance Criteria, [PARTY B] shall accept the [DELIVERABLE] and notify [PARTY A] that it is accepting the [DELIVERABLE].
Deemed Acceptance. [PARTY B] will be deemed to have accepted the [DELIVERABLE] if
[PARTY B] fails to notify [PARTY A] on or before the expiration of the Inspection Period, or
if during the Inspection Period, [PARTY B] sells or attempts to sell, runs, or otherwise uses the [DELIVERABLE] beyond what is necessary for inspection and testing and in a way a reasonable person would consider consider consistent with [PARTY B] having accepting ownership of the [DELIVERABLE] from [PARTY A].
Rejection. If in [PARTY B]'s opinion, the [DELIVERABLE] fails in a material way to meet the Acceptance Criteria, [PARTY B] may reject the [DELIVERABLE] by delivering to [PARTY A] a written list detailing each failure to satisfy the Acceptance Criteria.
Opportunity to Cure. If [PARTY B] rejects the [DELIVERABLE], [PARTY A] will have [NUMBER OF OPPORTUNITIES TO CURE] opportunities to promptly cure each failure in the [DELIVERABLE] and re-deliver the [DELIVERABLE] to [PARTY B] to re-inspect and test.
Continued Failure to Cure. If in [PARTY B]'s opinion, [PARTY A]'s corrections fail to satisfy the Acceptance Criteria [NUMBER OF OPPORTUNITIES TO CURE] times, [PARTY B] may terminate this agreement.
Acceptance Criteria. "Acceptance Criteria" means the specifications the [DELIVERABLE] must meet, [as agreed on by the parties in writing / as listed in [ATTACHMENT], attached to this agreement].

Training and Support Services
Training. [PARTY A] shall, at [PARTY A]'s expense, provide [PARTY B]'s employees with the initial training services necessary and desirable to operate the Software, as further described in the [ATTACHMENT], attached to this agreement, at [PARTY A]'s offices and on days and times the parties agree to in writing.
Support
Initial Support. For the [12] month period beginning on the Effective Date, and at [PARTY A]'s own expense, [PARTY A] shall provide [PARTY B] with 
telephone or electronic support during [PARTY A]'s normal business hours in order to help [PARTY B] locate and correct problems with the Software, and
internet-based support system generally available seven days a week, twenty-four hours a day. 
Renewed Support. After the initial [12] month support period, [PARTY B] may elect to renew [PARTY A]'s support services under this paragraph [SUPPORT] for additional [12] month periods, at [PARTY A]'s then-current service rates.

Changes to Services
Change Orders. [PARTY B] may request changes to the [DELIVERABLE] by written notice to [PARTY A].
Additional Time or Expense. If the proposed change will require a delay in delivery of the [DELIVERABLE] or would result in additional expense, 
[PARTY A] shall submit a proposal for the requested changes, detailing any added time and expense, and
[PARTY B] may elect to either
withdraw its proposed change, or
require [PARYT A] to provide the [DELIVERABLE] with the proposed change, subject to the delay and additional expense.
Termination. If [PARTY A] cannot, or chooses not to accept the change order, then [PARTY B] may terminate this agreement and pay [PARTY A] any amounts it already owes under this agreement.
Changes Made in Writing. If the parties agree to make changes to the [DELIVERABLE], the parties shall make those changes in writing, signed by each party.

Purchase Price. [PARTY B] shall pay [PARTY A] a purchase price of $[PURCHASE PRICE] (the "Purchase Price") for the [DELIVERABLE].

Purchase Price. [PARTY B] shall pay the Purchase Price
in an initial down payment of $[DOWN PAYMENT AMOUNT] due on [[DATE, MONTH] / the date of this agreement], and
with the remaining payment of $[REMAINING PAYMENT AMOUNT] due on [[DATE, MONTH] / delivery and [PARTY B]'s acceptance (after [PARTY B] has reasonable opportunity to inspect, at its own expense)],
both payment made in immediately available funds, and
to the account [PARTY A] lists immediately below:
Account Number:
Routing Number:

Taxes. Payment amounts under this agreement do not include Taxes, and [PARTY B] shall pay all Taxes applicable to payments between the parties under this agreement.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Term. This agreement begins on [the Effective Date] and will continue until [CONDITION / EVENT / FULFILLMENT OF ORDER / COMPLETION OF SERVICES], unless terminated earlier (the "Term").

Limited Warranty
Limited Media Warranty. The Developer warrants that, for a period of [MEDIA WARRANTY PERIOD] following delivery of the Software, the media upon which the Software is delivered will be free from defects in materials and workmanship under normal use.[ The Developer's sole obligation in this regard will be to provide the Customer with a performing copy of the Software within a reasonable time following the Customer's written notice to the Developer of the defect.]
Limited Support Warranty. For a period of [SUPPORT WARRANTY PERIOD] following the [delivery OR installation] of the Software, the Developer shall perform its maintenance and support services consistent with generally accepted industry standards, but only if the Software is installed and operated in accordance with the Developer's documentation and other instructions.
Limited Performance Warranty. The Developer warrants that, for a period of [PERFORMANCE WARRANTY PERIOD] starting on the date of [delivery OR installation] of the Software, the Software will perform substantially in accordance with the functional specifications set forth in the documentation, but only if the Software is installed and operated in accordance with the Developer's documentation and other instructions.
Disclaimer. [The Developer does not warrant that the functions contained in the Software will meet the Licensee's requirements or operate in the combination desired by the Licensee, or that the Software's operation will be uninterrupted or error-free. ]The Developer does not make and will not be liable for any warranties other than those expressly included in this agreement. 

No Infringement. [PARTY A] hereby warrants that nothing in the [DELIVERABLE], nor [PARTY B]'s use of the [DELIVERABLE], will infringe or constitute a misappropriation of the Intellectual Property rights of a third party.

No Open Source. [PARTY A] hereby warrants that the [DELIVERABLE] does not contain any software, hardware, or other materials, components, or parts licensed under an open source license.

No Warranty
"As-Is". Unless otherwise listed in this agreement, the [DELIVERABLE] is provided "as is," with all faults, defects, bugs, and errors.
No Warranty. Unless otherwise listed in this agreement,
[PARTY A] does not make any warranty regarding the [DELIVERABLE], which includes that 
[PARTY A] hereby disclaims to the [fullest] extent authorized by Law any and all [other] warranties, whether express or implied, including any implied warranties of [title, non-infringement, quiet enjoyment, integration,] merchantability or fitness for a particular purpose.

Exclusions from Warranty. [PARTY A]'s warranties under this agreement exclude any claims by [PARTY B] based on defects in the [DELIVERABLE] caused by [PARTY B], or by third parties beyond [PARTY A]'s control.

Work Made for Hire. [PARTY A] hereby acknowledges the parties' mutual intent that the [DELIVERABLE] is a "work for hire" within the meaning of the Copyright Act of 1976, as amended, and be [PARTY B]'s exclusive property.

Assignment of Rights. On [PARTY B]'s acceptance of the [DELIVERABLE] and payment of all compensation due to [PARTY A], [PARTY A] shall assign to [PARTY B] its entire interest in the [DELIVERABLE] (including all Intellectual Property and other property rights).

Confidentiality
Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.
Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement[ and solely for the Purpose].
Non-Disclosure. A receiving party may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent allowed under paragraphs [PERMITTED DISCLOSURE] and [REQUIRED DISCLOSURE].
Permitted Disclosure. A receiving party may disclose Confidential Information to its Representatives
if and to the extent that the disclosing party consents in writing to such disclosure, or
to the receiving party's officers, directors, employees, Affiliates, or Representatives who
need to know the Confidential Information in connection with the Purpose,
have been informed of the confidentiality obligations of this agreement, and 
agree comply with the confidentiality obligations of this agreement.
Required Disclosure. The receiving party may disclose Confidential Information if it is required to do so by Law but only if the receiving party
gives the disclosing party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient's compliance with the confidentiality obligations,
reasonably cooperates with the disclosing party in its reasonable efforts to obtain a protective order or other appropriate remedy,
discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, and
uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.
Standard of Care. In protecting the Confidential Information, the receiving party shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.
Burden of Proof. The receiving party will have the burden of proof relating to all exceptions to the definition of Confidential Information.
No Copies. A receiving party may not copy, record, or otherwise reproduce any Confidential Information.
No Modification of Confidential Information. The receiving party will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without the disclosing party's written consent.

Confidentiality Obligations. The parties shall continue to be bound by the terms of the non-disclosure agreement between the parties, dated [DATE] and attached to this agreement on [ATTACHMENT].

Confidentiality
Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.
Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement[ and solely for the Purpose].
Non-Disclosure. [PARTY B] may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose], except to the extent allowed under paragraphs [PERMITTED DISCLOSURE] and [REQUIRED DISCLOSURE].
Permitted Disclosure. [PARTY B] may disclose Confidential Information to its Representatives
if and to the extent that [PARTY A] consents in writing to such disclosure, or
to the [PARTY B]'s officers, directors, employees, Affiliates, or Representatives who
need to know the Confidential Information in connection with the Purpose,
have been informed of the confidentiality obligations of this agreement, and 
agree comply with the confidentiality obligations of this agreement.
Required Disclosure. [PARTY B] may disclose Confidential Information if it is required to do so by Law but only if [PARTY B]
gives [PARTY A] Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient's compliance with the confidentiality obligations,
reasonably cooperates with [PARTY A] in its reasonable efforts to obtain a protective order or other appropriate remedy,
discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, and
uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.
Standard of Care. In protecting the Confidential Information, [PARTY B] shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.
Burden of Proof. [PARTY B] will have the burden of proof relating to all exceptions to the definition of Confidential Information.
No Copies. [PARTY B] may not copy, record, or otherwise reproduce any Confidential Information.
No Modification of Confidential Information. [PARTY B] will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without [PARTY A]'s written consent.

Insurance 
Insurance Requirement. [PARTY A] shall maintain the insurance necessary to cover its obligations and responsibilities under this agreement, or any amount required by Law, but in no case less than
[LIST OF SPECIFIC TYPES AND AMOUNTS OF INSURANCE REQUIRED]
Proof of Insurance. At [PARTY B]'s request, [PARTY A] shall provide [PARTY B] with certificates or other acceptable proof of its insurance, describing the coverage of its insurance, and notice of any material change to its insurance. 
Additional Insurance. [PARTY B] may require [PARTY A] to obtain a reasonable amount of additional insurance, by providing [PARTY A] with
good reason for the additional insurance, and
requirements for the additional insurance.
Additional Insured
[PARTY B] Added to [PARTY A]'s Policy [PARTY A] shall, within [ADDITIONAL INSURED NOTIFICATION DAYS] Business Days' of the Effective Date, have [PARTY A]'s insurer add [PARTY B] as an additional insured to [PARTY A]'s policy.
Certificate of Insurance. [PARTY A] shall have its insurer send a certificate to [PARTY B], proving [PARTY B] has been added to [PARTY A]'s policy, and confirming that the insurer will give [PARTY B] [30] Business Days written notice before any proposed cancelation, modification, or reduction in coverage of [PARTY A]'s policy.
No Contribution from [PARTY A]. Any insurance carried by [PARTY B] will not be subject to contribution.

Escrow of Source Code
Delivery of Object Code. [PARTY A] will be required to provide the [DELIVERABLE] to [PARTY B] in object code form only.
Escrow of Source Code. Within [ESCROW DELIVERY DAYS] Business Days' after delivering the object code of the [DELIVERABLE] to [PARTY B], [PARTY A] shall deposit one copy, on [PARTY B]'s behalf, of the [DELIVERABLE] in source code with an escrow agent specializing in software escrows who the parties agree on in writing.
Updates of Source Code. If [PARTY A] makes any updates, enhancements, or modifications to the [DELIVERABLE], [PARTY A] shall promptly deposit one copy, on [PARTY B]'s behalf, of that update, enhancement, or modification, and any documentation related to the update, enhancement, or modification, to the escrow agent.
Upkeep of Escrow Account. [PARTY B] shall pay all fees necessary to establish and maintain the escrow.
Contingent License. [PARTY A] hereby grants to [PARTY B] a contingent license to receive the source code from the escrow agent and to use the source code to support its use of the [DELIVERABLE] in machine-readable form if [PARTY A]
whether directly or through a successor or affiliate, ceases to be in the software business,
fails to fulfill its obligations to maintain the [DELIVERABLE] as provided in this agreement,
becomes insolvent or admits insolvency or a general inability to pay its debts as they become due,
 files a petition for protection under the U.S. Bankruptcy Code, or an involuntary petition is filed against it and is not dismissed within 60 Business Days, or 
comes under the control of a competitor of [PARTY B].

Termination
Termination on Notice. Either party may terminate this agreement for any reason on [TERMINATION NOTICE BUSINESS DAYS] Business Days’ notice to the other party.
Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
the failure, inaccuracy, or breach continues for a period of [BREACH CONTINUATION DAYS] Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach.
Termination for Insolvency. If either party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other party may terminate this agreement with immediate effect.

Effect of Termination
Termination of Obligations. Subject to paragraph [PAYMENT OBLIGATIONS], on termination or expiration of this agreement, each party's rights and obligations under this agreement will cease immediately.
Payment Obligations. Even after termination or expiration of this agreement, each party shall
pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and
refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.
No Further Liability. On termination or expiration of this agreement, neither party will be liable to the other party, except for liability
that arose before the termination or expiration of this agreement, or
arising after the termination or expiration of this agreement and in connection with sections [[CONFIDENTIALITY], [TAXES], or [TERMINATION]].

Return of Property. On termination or expiration of this agreement, or on [PARTY A]'s request, [PARTY B] shall
return to [PARTY A] all originals of the information, documents, equipment, files, and other property, including Intellectual Property, it received from [PARTY A],
destroy all copies of [PARTY A]'s of the information, documents, equipment, files, and other property, including Intellectual Property, it made, and
on [PARTY A]'s request, certify to [PARTY A] in writing that it destroyed all these copies.

Indemnification
Indemnification by [PARTY B]. [PARTY A] (as an indemnifying party) shall indemnify [PARTY B] (as an indemnified party) against all losses and expenses arising out of any proceeding
brought by either a third party, and
arising out of a claim that the [DELIVERABLE] infringes the third party's Intellectual Property rights.
Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
brought by either a third party or an indemnified party, and
arising out of the indemnifying party's willful misconduct or gross negligence.
Notice and Failure to Notify
Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
notify the indemnifying party of the indemnifiable proceeding, and
deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.
Exclusive Remedy. The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section [INDEMNIFICATION].

Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

Definitions
"Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business.
"Effective Date" is defined in the introduction to this agreement.
"Governmental Authority" means 
(a) any federal, state, local, or foreign government, and any political subdivision of any of them, 
(b) any agency or instrumentality of any such government or political subdivision, 
(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), or 
(d) any arbitrator, court or tribunal of competent jurisdiction.
"Intellectual Property" means any and all of the following in any jurisdiction throughout the world 
(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
(b) copyrights, including all applications and registrations related to the foregoing,
(c) trade secrets and confidential know-how,
(d) patents and patent applications,
(e) websites and internet domain name registrations, and 
(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
"Law" means 
(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and 
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
"Person" includes 
(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and 
(b) any individual.
"Purchase Price" is defined in section [PURCHASE PRICE].
"[Software]" is defined in section [SOFTWARE DEVELOPMENT AND FEES].
"Specifications" is defined in section [SPECIFICATIONS].
"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
"Term" is defined in section [TERM].
"Warranty Period" is defined in section [LIMITED WARRANTY].

General Provisions

Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
represent the final expression of the parties' intent relating to the subject matter of this agreement,
 contain all the terms the parties agreed to relating to the subject matter, and
replace all of the parties' previous discussions, understandings, and agreements relating to the subject matter of this agreement.

Counterparts
Signed in Counterparts. This agreement may be signed in any number of counterparts.
All Counterparts Original. Each counterpart is an original.
Counterparts Form One Document. Together, all counterparts form one single document.

Amendment. This agreement can be amended only by a writing signed by both parties.

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's written consent.

Binding Effect. This [agreement /plan] will benefit and bind the parties and their respective heirs, successors, and permitted assigns.

Notices
Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][, or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
Receipt of Notice. A notice given under this agreement will be effective on
the other party's receipt of it, or
if mailed, the earlier of the other party's receipt of it and the [fifth] business day after mailing it. 

Dispute Resolution
Mediation. Any disputes not resolved by negotiation will be subject to mediation under the [American Arbitration Association's Mediation Rules] as a condition precedent to the filing of any litigation.
Either party may commence the mediation process by providing to the other party written notice, listing the subject of the dispute, claim or controversy and the relief requested.
Within ten 10 days after the receipt of the foregoing notice, the other party shall deliver a written response to the initiating party's notice.
Mediation will be held at a mutually agreeable location[ within the State where the contract is performed].
The initial mediation session will be held within 30 days after the initial notice.
The parties agree to share equally the expenses of the mediation (which will not include the expenses incurred by each party for its own legal representation in connection with the mediation).
Arbitration. Any disputes not resolved by mediation within [45] days after initiation of the mediation procedure will be resolved by arbitration under the American Arbitration Association's Arbitration Rules in a court of competent jurisdiction where the [contract is performed]. 
The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
The arbitration will be conducted by an arbitrator experienced in [ARBITRATOR EXPERIENCE] and will include a written record of the arbitration hearing. The parties reserve the right to object to any individual who will be employed by or affiliated with a competing organization or entity.
The place of arbitration will be [CITY, STATE].
Litigation. If the dispute has not been resolved by non-binding means as provided herein within [90] days of the initiation of such procedure, this agreement does not preclude either party from initiating litigation [on [00] days written notice to the other party]; provided, however, that if one party has requested the other to participate in a non-binding procedure and the other has failed to participate, the requesting party may initiate litigation before expiration of the above period.

Dispute Resolution
Arbitration. Any dispute or controversy arising out of this agreement and [SUBJECT MATTER OF THE AGREEMENT] will be settled by arbitration in [STATE], according to the rules of the American Arbitration Association then in effect, and by [NUMBER OF ARBITRATORS] arbitrators[s].
Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction.
Arbitrator's Authority. The arbitrator will not have the power to award any punitive [or consequential] damages.

Governing Law and Consent to Jurisdiction and Venue
Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by the laws of the State of [GOVERNING LAW STATE].
Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE], in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].
Consent to Service. Each party hereby irrevocably
agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE], and 
waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is
 beyond the reasonable control of a party,
 materially affects the performance of any of its obligations under this agreement, and
 could not reasonably have been foreseen or provided against, but
will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Waiver
Affirmative Waivers. Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.
Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Interpretation
References to Specific Terms
Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").
Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.
"Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."
"Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:
the then-current, actual knowledge of the directors and officers of that party, and
the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.
Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.
Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.
Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.
Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. [TIME ZONE] Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. [TIME ZONE] Time on the next Business Day.
Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.
Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of [this agreement/[SPECIFIED AGREEMENTS]] will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement / [SPECIFIED AGREEMENTS].

This agreement has been signed by the parties.
[PARTY A NAME]
Name: [PARTY A SIGNATORY NAME]
Title: [PARTY A SIGNATORY TITLE]
[PARTY B NAME]
Name: [PARTY B SIGNATORY NAME]
Title: [PARTY B SIGNATORY TITLE]

Overview

A Software Development Agreement is between a Customer and a Developer, by which the Customer contracts for the Developer to create and deliver a specified piece of software. Software is copyrightable as literary, see 17 U.S.C. § 107(a)(1), and could also include patented processes, see 35 U.S.C. § 101.

The agreement will (hopefully) culminate in either with the developer assigning ownership of the developed software to the customer—including any copyright and patent rights in the software—or the developer granting a non-exclusive license for the customer to use the software. For example, it may be that the customer has an idea for software to improve its own internal systems, but the customer has no intent, or capability, to produce and commercialize the software. If the customer does not care about whether other businesses, in the customer's industry or otherwise, can use the software, it may make more sense for the customer to simply get a non-exclusive license from the developer, leaving the developer free to commercialize the developed software.

Further complicating proceedings is whether the Uniform Commercial Code (UCC) should govern a Software Development Agreement. The UCC governs transactions involving goods, it provides default rules that govern contracts for goods where either the parties were silent regarding specific obligations under that contract, or where there is unresolvable uncertainty as to what the parties did agree. As mentioned, the UCC governs contracts for goods, it does not apply to services. The first issue is that software has been difficult for courts to classify, whether it is a good or a service. Licenses tend to be seen as services, while sales and assignments of software are more often treated as goods. Furthermore, a Software Development Agreement is a contract for a service, the development by the developer, that culminates in a good (depending on whether it is a sale or a license for the developed software). Whether a Software Development Agreement is covered by the UCC will depend on the case law of the relevant jurisdiction, and is something the parties will want to be aware of as they draft their agreement.

Key Issues in a Software Development Agreement:

Assignment or License? Depending on the needs of the customer, the agreement can culminate in either an outright assignment of the developed software from the developer to the customer, or simply a non-exclusive license to the customer, with the developer retaining ownership, and thus the right to otherwise commercialize the developed software. Which party ends up owning the software should effect the payment due to the developer.
Ownership and Background Technology. The developer will likely have a digital toolbox of subroutines, development tools, and other background programs and technologies that it uses during development, some of which can end up in the final product. If the agreement culminates in an assignment of rights to the customer, it should also include a proprietary rights or ownership clause that makes it clear the developer maintains ownership of all background technology. Otherwise, the developer’s future use of its own tools could infringe on the software it delivered to the customer.
Delivery and Cure Period. Because of the complexity of software it is not uncommon for delivered software to not conform perfectly to the specifications. The developer will want more leniency in the consequences for delivering software that fails to perfectly conform to expectations. The agreement should allow the developer the opportunity to cure any mistakes or errors, within a reasonable time. On the other hand, the customer may want to limit the developer’s chances to cure, so that repeated failure creates grounds for termination.
Non-Infringement. With an endless number of patents already protecting the tiniest details of software, and strict liability for patent infringement, there is a real risk that the developed software could infringe on an existing patent. There is also the risk of copyright infringement, though without strict liability for copyright infringement the danger is less. Still, the potential for infringement, especially patent infringement, makes the Representations and Warranties clause, and the Indemnity clause particularly important in a Software License Agreement, as the customer should be confident it is receiving a non-infringing piece of software, and because the developer, rather than the customer, should be liable for damages incurred by any infringement claims by third parties.

Software Development Agre...

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Software Development Agreement

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