Software development agreement (premium)
This full-length software development agreement is highly flexible. It contains a wealth of optional and alternative provisions, and can be adapted for use in a wide range of software development scenarios, including those involving corporate clients.
The agreement assumes that the new intellectual property rights in code produced by the developers will be assigned (ie transferred) to the customer. However, pre-existing code ("framework code" in the terms of the agreement) may be retained by the developers and licensed to the client. Similarly, the rights in third party materials incorporated into the software may be treated separately from the rights in code produced by the developers.
The agreement makes provision for set-up services, which might include installation, configuration and integration services. In addition, a fairly straightforward acceptance procedure is suggested. Under this procedure, the customer must go through a number of rounds of acceptance tests before a failure of the software to meet its specification amounts to a material breach of contract.
Source code may or may not be supplied with the software. If source code is not supplied, it may be placed in escrow.Ask about this document
Software development agreement (premium) contents
- Definitions: definitions.
- Term: commencement of term; end of term.
Development Services: obligation to provide development services; timetable for software development and delivery; delays in development services consequent upon second party delays; software development coding standards; keep second party informed of development services progress; availability of software to second party during development. Set Up Services: obligation to provide set up services; set up services timetable; delays in set up services consequent uponCustomerdelays; software set up services and intellectual property rights.
- Acceptance procedure: obligation to carry our acceptance tests; licence to conduct software acceptance tests; assistance with acceptance tests; notification of results of acceptance tests; software deemed to pass acceptance tests; information upon notice of failure to pass acceptance tests; consequences of software acceptance test failure; number of acceptance testing rounds; consequences of acceptance of software.
Assignment IP: assignment of IPR on acceptance with full title guarantee option; assignment of owned IPR in software on acceptance; assignment for full term of rights; assignment includes right to claim for past infringements. Framework Software: grant of licence to use framework software; no sub-licensing of framework software; right to sub-license framework software; use of framework software limited to specified persons; framework software licence prohibitions; security of licensed framework software. Source Codeof Framework Software: no licence of source code of framework software (excluding escrow).
- Escrow of
Source Codeof Framework Software: parties to enter into escrow agreement (framework software); all reasonable endeavours in relation to escrow agreement; form of escrow agreement. Third Party Materials: licensing of third party materials (software). Additional Development Services: parties may agree additional development services; matters to be agreed relating to additional development services; standard of additional development services.
- Customerobligations: general second party obligations; access to computer systems.
- CustomerMaterials: supply ofCustomermaterials; licence ofCustomermaterials; warranties relating toCustomermaterials.
- Representatives: instructions given by first party representatives; instructions given by second party representatives.
- Management: management meetings; notice to be given when requesting management meeting; attendance of representatives at management meetings.
Changecontrol: application of section to change requests; request changes at any time; change control notice to be in designated form; actions upon receipt of a change control notice; changes only take effect upon agreement of CCN.
- Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
- Expenses: obligation to reimburse expenses; collection of evidence of expenses; supply of evidence of expenses.
- Timesheets: obligation to keep timesheets; obligation to supply timesheets.
- Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
- Confidentiality obligations: Developerconfidentiality undertaking;Customerconfidentiality undertaking; disclosure of confidential information to certain persons; exceptions to confidentiality obligations; disclosures of confidential information mandated by law etc; parties to stop using confidential information upon termination; parties to delete confidential information following termination; confidentiality obligations after termination.
- Publicity: limited public disclosures; limited public disclosures by Developer; limited public disclosures byCustomer; confidentiality obligations overriding.
- Data protection: compliance with data protection laws; warranty of Customer's right to disclose personal data (GDPR); details of personal data processed bythe Developer(GDPR); purposes of processing of personal data bythe Developer(GDPR); duration of personal data processing byDeveloper(GDPR); personal data processed byDeveloperon instructions (GDPR); authorised international transfers of personal data (GDPR); informingCustomerof illegal instructions (GDPR); personal data processed byDeveloperas required by law (GDPR); confidentiality obligations onDeveloperpersons processing personal data (GDPR); security of personal data processed byDeveloper(GDPR); appointment of sub-processor byDeveloper(GDPR); authorisation forDeveloperto appoint sub-processors (GDPR);Developerto assist with exercise of data subject rights (GDPR);Developerto assist with compliance (GDPR); obligation to notifyCustomerof personal data breach (GDPR);Developerto provide data protection compliance information (GDPR); deletion of personal data byDeveloper(GDPR);Developerto allow audit (GDPR); changes to data protection law.
- Warranties: first party general warranties; software licence warranties; warranty of legality of software and documentation; software and documentation IPR infringement warranty; breach of software infringement warranty; second party warranty of authority; exclusion of implied warranties and representations.
- Acknowledgements and warranty limitations: software not error free; software not entirely secure; software compatibility is limited; no legal etc advice with software.
- Indemnities: indemnity (flexible, with definition); conditions upon first party indemnity; indemnity (flexible, with definition); conditions upon second party indemnity; limitations of liability vs indemnities.
- Limitations and exclusions of liability: caveats to limits of liability; interpretation of limits of liability; no liability for force majeure; no liability for loss of profits; no liability for loss of revenue; no liability for loss of use; no liability for loss of opportunities; no liability for loss of data; no liability for consequential loss; per event liability cap upon services contract; aggregate liability cap upon services contract.
Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
- Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
- Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
- Non-solicitation of personnel: non-solicitation of employees by second party; non-solicitation of employees by first party.
- Notices: contractual notices must be in writing; methods of sending contractual notices; contact details for contractual notices; substitute contact details for notices; acknowledgement of notice by email; deemed receipt of contractual notices.
- Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
- Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
- Assignment: assignment by first party; assignment by second party.
- No waivers: no unwritten waivers of breach; no continuing waiver.
- Severability: severability of whole; severability of parts.
- Third party rights: third party rights: benefit; third party rights: exercise of rights.
- Variation: variation in writing and signed, subject to change control.
- Entire agreement: entire agreement: documents; no misrepresentation; section subject to caveats to limits of liability.
- Export control: application of export laws; compliance with export laws; specific export control compliance obligations.
- Law and jurisdiction: governing law; jurisdiction.
- Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.
SCHEDULE 1 (SOFTWARE DEVELOPMENT PARTICULARS)
- Specification of
Software: specification of software prompt. Third Party Materials: prompt for identification of third party materials. Set Up Services: specification of software set up services prompt.
- Timetable: timetable prompt.
: second party materials prompt.CustomerMaterials
- Financial provisions: financial provisions prompt.
- Representatives: first party representatives; second party representatives.
SCHEDULE 2 (FORM OF
- Introduction: title of change; change control notice number; change proposor; date of change control notice; summary of proposed change.
Changedetails: insert details of change.
- Impact of
Change: impact upon resources; impact upon timetable; impact upon charges; other effects of proposed change.
- Agreement to
Change: acceptance of change by signature; form of signature block for first party; form of signature block for second party.
SCHEDULE 3 (FORM OF ESCROW AGREEMENT)
- Add escrow agreement prompt.
SCHEDULE 4 (DATA PROCESSING INFORMATION)
- Categories of data subject: prompt for categories of data subject.
- Types of
Personal Data: prompt for types of personal data.
- Purposes of processing: prompt for personal data processing purposes.
- Security measures for
Personal Data: prompt for security measures for personal data.
- Sub-processors of Personal Data: prompt for identifying sub-processors of personal data.