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Software development agreement (basic)

This short-form software development agreement covers the development of software for a customer, the supply of that software to the customer and the assignment of the intellectual property rights in that software to the customer.

The software should be identified in the first schedule to the agreement, and may or may not include source code. In most cases, where rights in software are being assigned by a developer to a customer, the source code should be supplied and rights in the source code should be assigned. Third party intellectual property rights subsisting in the software are excluded from the scope of the assignment, but may be made subject to a separate licensing provision.

The charging provisions in the document are flexible, allowing for an agreed fee and/or time-based charging. In addition, the parties may agree to extra charges during the course of the contract.

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Software development agreement (basic) contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term: indefinite, or software delivered, services completed and payment made.
  3. 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.
  4. Assignment: assignment of IPR on delivery with full title guarantee option; assignment of owned IPR in software on delivery; assignment for full term of rights; assignment includes right to claim for past infringements.
  5. Third Party Materials: licensing of third party materials (software).
  6. Customer
    obligations:
    general second party obligations.
  7. Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
  8. Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
  9. 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.
  10. 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.
  11. Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
  12. Termination: termination without cause by first party; termination without cause by second party; termination upon breach; termination upon insolvency; termination upon non-payment.
  13. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
  14. Further assurance: further assurance (intellectual property); assistance with registration of intellectual property rights; assistance with proceedings relating to assigned intellectual property.
  15. Notices: methods and deemed receipt of contractual notices; contact details for contractual notices; substitute contact details for notices.
  16. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations.
  17. General: no waiver; severability; variation written and signed; no assignment without written consent; no third party rights; entire agreement; governing law; exclusive jurisdiction.
  18. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.

SCHEDULE 1 (SOFTWARE DEVELOPMENT PARTICULARS)

  1. Specification of Software: specification of software prompt.
  2. Third Party Materials: prompt for identification of third party materials.
  3. Timetable: timetable prompt.
  4. Financial provisions: financial provisions prompt.