SOFTWARE DEVELOPMENT AGREEMENT

This SOFTWARE DEVELOPMENT AGREEMENT (hereinafter referred to as “the Agreement”) is made on [DATE ON WHICH THE AGREEMENT COMES INTO FORCE] hereinafter referred as the “Effective Date”) between:

[NAME OF THE SOFTWARE DEVELOPER], having registered office at [ADDRESS OF SOFTWARE DEVELOPER] (hereinafter referred as the “Software Developer” which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns);

And

[NAME OF THE CLIENT], having official address at [ADDRESS OF THE CLIENT] (hereinafter referred as the “Client” which expression shall, unless repugnant to the context or meaning thereof, means and includes its legal representatives, executors, administrators and permitted assigns);

The Software Developer and the Client shall be collectively referred as “Parties” and individually as “Party”.

WHEREAS:

1. The Client has conceptualized the deliverables (the “Software”) – which are described in further detail in Exhibit A – and the Software Developer is a contractor with whom the Client has come to an agreement to develop the Software.
2. The Software Developer has the necessary know-how, skill and expertise to ascertain the Client’s particular requirements and to develop the Work for the Client upon the terms and subject to the conditions of this Agreement.
3. Both the parties wish to evidence their contract in writing.
4. The parties are duly authorized and have the capacity to enter into this contract.
5. Both the parties affirm to understand the provisions contained herein and in case either party requires clarification as to one or more provisions, either party has had the right to seek clarifications or sought legal guidance.

NOW, THEREFORE, in consideration of the mutual promises contained herein and intending to, be legally bound, the Parties have agreed as follows:

1. DEFINITIONS
   1. “Intellectual Property” means all Intellectual Property other than the technology owned by the Software Developer prior to the date of signing of this Agreement or licensed to the Software Developer by a third party and used in the development of the Product.
   2. “Work”/”Product” shall mean software developed by the Software Developer as per the specifications provided by the Client.
   3. “Business Day” shall mean any day which is not a Saturday, Sunday or public holiday in [INSERT COUNTRY OF BUSINESS].
   4. “Confidential Information” shall mean information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information in this agreement.
2. DUTIES OF THE SOFTWARE DEVELOPER
   1. Software Developer shall serve as a contractor of Client and shall design, develop, and implement applications software (the "Software") according to the functional specifications and related information, if any, attached hereto as Exhibit A and incorporated herein by this reference (the "Specifications") and as more fully set forth in this Agreement. Developer acknowledges that it has been contracted for this specific task, and that it shall report all findings and make all recommendations directly to the management of the Client. The Software, including all versions in either source code or object code form, shall be delivered to Client not later than [INSERT COMPLETION DATE OF SOFTWARE DEVELOPMENT].
   2. The Software Developer shall provide to the Client after the Delivery Date User & code training which is included in the 30 hours support period as mentioned in this Agreement.
   3. The Software Developer shall provide the services diligently and as per industry standards;
   4. The Software Developer shall not provide misleading information about the Client or its services to the customer;
   5. The Software Developer shall follow the terms of the Agreement in good faith.
3. DUTIES OF THE CLIENT
   1. Client agrees to provide all assistance and cooperation to the Software Developer in order to complete timely and efficiently the Work;
   2. The Client shall make timely payment to the Software Developer for the services rendered by it to the Client;
   3. The Client shall not provide misleading information about the Software Developer or any of its employees;
   4. The Client shall follow the terms of the Agreement in good faith.
4. TERM AND TERMINATION
   1. The present Agreement shall come into force on the Effective Date hereof and shall remain in force till the completion of the services.
   2. Notwithstanding any other provisions herein contained, and without prejudice to any other rights such party serving notice may have, either party shall have the right to terminate the present Agreement by giving the other party a written notice of [INSERT NOTICE PERIOD TO TERMINATE THE SERVICES] days.
5. DELIVERY
   1. The Software shall function in accordance with the Specifications on or before the Delivery Date.
   2. If the Software as delivered does not conform to the Specifications, the Client shall within 30 days of the Delivery Date notify the Software Developer in writing of the ways on which it does not conform with the Specifications. The Software Developer agrees to investigate and if any lapses are found and shall make reasonable efforts to correct any non-conformity.
   3. If the client does not provide evidence that the delivered software is not within the specifications described in Exhibit A within 30 days, it is understood that the delivery is as per the specification and no further confirmation is required.
6. COMPENSATION
   1. In consideration for the Service, the Client shall pay the Software Developer a maximum total fee for all work under this Software Development Agreement of [INSERT THE FEES PAYABLE FOR SOFTWARE DEVELOPMENT]. Fees billed shall be due and payable upon the Software Developer providing the Client with an invoice.  Invoices will be provided by the Software Developer soon after each Milestone is completed and signed off. The Milestones are mentioned in Exhibit B which is attached to this Agreement.
   2. The client agrees to pay the amount mentioned in the invoice within 5 business days. The payment shall be made via [INSERT MODE OF PAYMENT].
   3. The Software Developer requires the customer to sign-off at each phase of the development and the sign-off duration (time taken to review and sign-off) by the customer is not accounted for in the development timeline mentioned by the Software Developer.
7. INTELLECTUAL PROPERTY RIGHTS
   1. All materials, including, but not limited to, schematics, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof (collectively, the “Work”) developed by Software Developer in connection with the provision of the Services to Client, or jointly by Client and Software Developer, or by Software Developer pursuant to specifications or instructions provided by Client, shall belong exclusively to Client after the full and final payment has been made to the Software Developer. Until the full and final payment is not made by the Client, such Intellectual property shall be owned by the Software Developer. Software Developer acknowledges that the Work shall be deemed “works made for hire” by Software Developer for Client, and, therefore, shall be the exclusive property of Client.
   2. Pre-Existing Intellectual Property: Notwithstanding any provision of this Agreement to the contrary, any software routines, methodologies, processes, software libraries, tools or technologies created, adapted or used by Software Developer in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of Software Developer, and Customer shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Product. In addition, notwithstanding any provision of this Agreement to the contrary, Software Developer shall be free to use any ideas, concepts, or know-how developed or acquired by Software Developer during the performance of this Agreement to the extent obtained and retained by Software Developer’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights mentioned above, nothing in this Agreement shall be construed to preclude Software Developer from using the Development Tools for use with third parties for the benefit of Software Developer.
8. CHANGE IN SPECIFICATIONS
   1. The Client may request that reasonable changes be made to the Specifications and tasks associated with the implementation of the Specifications. If the Client requests such a change, the Software Developer will use its best efforts to implement the requested change at hourly rates mentioned in this Agreement and will cause delay in delivery of the scope mentioned in Exhibit A of this document
   2. For any additional services which are provided by the Software Developer, the Software Developer shall raise another invoice for the Client which has to be paid by him in accordance with the Compensation clause of this Agreement.
9. CONFIDENTIALITY
   1. Confidential Information. As used herein, "Confidential Information" shall mean and include all information disclosed by either Party under this Agreement, whether marked confidential or not, including without limitation the terms and conditions of this Agreement, the services and products, business and marketing plans, technology and technical information, financial information, product designs, and business processes, specifications, network diagram,  (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). 
   2. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without either Party’s breach of any obligation owed to the other Party; (ii) was independently developed by a Party without other Party's breach of any obligation owed to that Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Party.
   3. During and after the term of this Agreement, Parties will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and Parties will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of the Services on behalf of the other Party, or (ii)  disclose the Confidential Information to any third party without the prior written consent of an authorized representative of the other Party.
   4. Parties agree to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall the Parties exercise less than reasonable care in protecting such Confidential Information.
   5. The Parties shall not use any confidential information directly or indirectly to procure a commercial advantage over the other Party or otherwise use any designs, ideas or concepts created by or belonging to the other Party without the express written consent of the other Party.
   6. Upon termination/ expiration whichever is earlier, the Parties shall promptly return or certify the destruction of Confidential Information and all authorized copies thereof.
10. SOFTWARE DEVELOPER WARRANTIES
    1. Development and delivery of the Software under this Agreement are not in violation of any other agreement that the Software Developer has with another party.
    2. The Software will not violate the intellectual property rights of any other party.
    3. For a period of 10 days after the Delivery Date, the features developed by the Software Developer shall operate according to the Specifications. If the features developed by the Software Developer mentioned in Exhibit A of this document malfunctions or in any way does not operate according to the Specifications within that time, then the Software Developer shall take any reasonably necessary steps to fix the issue and ensure the Software operates according to the Specifications.
    4. Software Developer warranties that in carrying out the services described in this Agreement, the best technical practices, skills, procedures, care and judgment will be employed, the services will be performed in the most expeditious and economical manner consistent with client’s best interests, and Software Developer shall at all times cooperate with the client so as to further Client’s best interests.
11. INDEMNIFICATION
    1. CLIENT INDEMNITY: Client agrees that it shall defend, indemnify, save and hold Software Developer harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, (collectively "Liabilities") asserted against Software Developer, its contracted providers, agents, Clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to the performance of any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Software Developer against Liabilities arising out of (i) any injury to any person or property caused by any products sold or otherwise distributed in connection with the Work; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; or (iii) copyright infringement and/or litigation regarding content-related disputes. 
    2. SOFTWARE DEVELOPER INDEMNITY: Software Developer shall indemnify and hold harmless Client (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by Client as a result of sole negligence of the Software Developer in performing the services which are in the scope of services. 
12. MODIFICATIONS
    1. Except as otherwise provided herein this Agreement shall not be amended or otherwise modified unless the modification or amendment is done in writing, signed and has been mutually agreed by both the parties.
13. APPLICABLE LAW
    1. This Agreement shall be governed by and constructed in accordance with the Laws, rules, orders and regulations of [INSERT COUNTRY/STATE OF APPLICABLE LAWS] irrespective of where the Work is used.  
    2. The Parties shall resolve all disputes in connection with the validity or interpretation of this Agreement, unless otherwise expressly stated in the Agreement, in the following manner: 
       1. By direct negotiations between the Software Developer and Client. 
       2. If negotiations between the parties are unsuccessful, the matter shall be referred to the competent court sitting at [INSERT THE COURT WHICH SHALL HAVE EXCLUSIVE JURISDICTION IN CASE OF UNSUCCESSFUL NEGOTIATION BETWEEN PARTY] which shall have exclusive jurisdiction in all matters arising there from unless otherwise agreed between the Parties in writing.
14. INDEPENDENT CONTRACTOR
    1. The Software Developer acknowledges that they are solely an Independent Contractor and is not an employee, agent, partner or joint venturer of the Client. The Client will provide the Software Developer with the details of the Services it wants the Software Developer to undertake and perform henceforth. The Client shall not withhold any taxes or any amount or payment due to the Software Developer and which it owes to the Software Developer in regard to the services rendered by it to the Client.
15. LIMITATION OF LIABILITY
    1. The Software Developer shall be liable for only the work which is in the Scope of Services which have to be performed by the Software Developer. The Software Developer shall not be liable for any work which is done by him which is out of the scope of the services provided by him.
    2. The Software Developer assumes no responsibility under this Agreement other than to perform the Services in good faith, and the Software Developer will not be responsible for any action of the Client in following or declining to follow any advice or recommendation of the Software Developer.
    3. The Software Developer shall only provide a 30 days warranty period for the services which are provided by him and shall not be liable thereafter.
16. FORCE MAJEURE
    1. Neither party shall be held liable for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by events beyond the reasonable control of the affected party, including but not limited to acts of God, natural disasters (e.g., floods, earthquakes, hurricanes), war, terrorism, riots, labour strikes, governmental actions, epidemics or pandemics, power outages, or other similar events ("Force Majeure Events").The affected party shall promptly notify the other party in writing of the occurrence of a Force Majeure Event, providing reasonable details of the event, its expected duration, and the steps being taken to mitigate its impact. Failure to provide timely notice may result in the affected party forfeiting its rights under this clause. If a Force Majeure Event continues for a period exceeding [INSERT THE NUMBER OF DAYS CONSTITUTING PERIOD EXCEEDING WHICH, IF THE FORCE MAJEURE CONTINUES, EITHER PARTY MAY TERMINATE THE AGREEMENT] days, either party may terminate this Agreement upon written notice to the other party without further liability, except for obligations accrued prior to the Force Majeure Event.
17. NOTICES
    1. Any notice, request, demand, consent or other communication required or permitted under this Agreement shall be in writing and sent either via email on the email address as provided by the parties and shall be considered sent when the email is sent to the correct email address of the party or shall be given by personal delivery (including courier) by certified mail (confirmed by mail) addressed to the party for which it is intended at the address below and shall be deemed to be given on the day of delivery or transmission if within during normal business hours, or, if after business hours, on the next following Business Day, or if mailed by registered or certified mail, on the day which is seven (7) Business Days after such notice is mailed during normal postal conditions.  In the event of a postal disruption, any notice mailed will be deemed received on the seventh (7th) Business Day following resumption of regular postal service:
       1. If to the Software Developer: [INSERT THE EMAIL ID OR/AND ADDRESS OF SOFTWARE DEVELOPER]
       2. If to the Client: [INSERT THE EMAIL ID OR/AND ADDRESS OF THE CLIENT]
    2. Either party may change its address/email address for notices and other communications upon notice to the other party in the manner aforesaid.
18. HEADINGS, WORDS AND GENDERS
    1. The division of this Agreement into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of this Agreement. The words “hereof”, “herein”, “hereunder” and similar expressions used in any section of this Agreement relate to the whole of this Agreement (including any schedules attached hereto) and not to that section only, unless otherwise expressly provided for or the context clearly indicates to the contrary. Words importing the singular number only will include the plural and vice versa and words importing the masculine gender will include the feminine and neuter genders and vice versa. The words “including” will mean “including without limitation”.
19. LANGUAGE
    1. The language of all communications between the parties pursuant to this Agreement, including notices and reports, will be the English language.
20. SEVERABILITY
    1. If any provision of this Agreement shall, to any extent, be held to be invalid or unenforceable, it shall be deemed to be separate and severable from the remaining provisions of this Agreement, which shall remain in full force and effect and be binding as though the invalid or unenforceable provision had not been included.
21. MISCELLANEOUS
    1. Termination of this agreement for any cause whatsoever shall not release a party from any liability which, at the time of termination, has already accrued to the other party or which may thereafter accrue in respect of any act or omission prior to such termination.
    2. Article headings are inserted for convenience of reference only and shall not be deemed to affect the interpretation of this agreement or of any clause.
    3. Each party shall cooperate with the other and execute and deliver to the other such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, give effect to and confirm their rights and the intended purpose of this agreement.
    4. This agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
    5. A failure or delay in exercising any right, power or privilege in respect of this agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
22. ENTIRE AGREEMENT
    1. This agreement along with all the Exhibits constitutes the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties. This Agreement may be executed in identical duplicate counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 
23. DECLARATION
    1. Each of the parties hereto covenant and agree to execute and deliver such further and other agreements, assurances, undertakings or documents, cause such meetings to be held, resolutions passed and by-laws enacted, exercise their votes and influence and do and perform and cause to be done and performed any further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement.

IN WITNESS WHEREOF, the parties, intending to be legally bound, have each executed this agreement as of the effective date.

Signed, sealed and delivered on behalf of Software Developer

Name: [NAME OF SOFTWARE DEVELOPER/SIGNING AUTHORITY AND DESIGNATION]

Signature:

Date: [SIGNING DATE OF SOFTWARE DEVELOPER]

Signed, sealed and delivered on behalf of Client

Name: [NAME OF CLIENT/SIGNING AUTHORITY AND DESIGNATION]

Signature:

Date: [SIGNING DATE OF CLIENT]

EXHIBIT A

SOFTWARE SPECIFICATIONS
[INSERT SOFTWARE SPECIFICATIONS]

EXHIBIT B

MILESTONE SCHEDULE

[INSERT MILESTONE SCHEDULE]