(a) Developer agrees to perform the services described in the Sprint Agreement, which is attached to and fully incorporated with this Agreement. (the “Services”)
No changes to the Sprint agreement may be made without the Parties written agreement. In the event either Party wishes to make any modification to the Sprint Agreement (the “Requesting Party”) , the timely request of any changes (“Change Request”) must be made to the non-requesting Party (the “Receiving Party”). The Receiving Party will evaluate any Change Request and will submit to the Requesting Party a written response to each change Request within five (5) business days following receipt thereof (“Change Request Response”). The Requesting Party will have the right to accept, reject, or propose modifications to each such Change Request Response within five (5) business days following receipt thereof. Upon acceptance of the Change Request-Response, the Services and Sprint Agreement will be amended accordingly. Acceptance of such changes may be given by either Party electronically.
(b) The Company agrees to pay all ongoing monthly fees in advance of such services being rendered. The Developer is not required to invoice for any regular monthly fees or payments.
(c) The Developer will invoice the Company for Services performed on an hourly basis and the Company agrees to pay such invoiced amounts in accordance with the payment terms indicated on the invoice.
(d) The Company agrees that any payment over 15 days past due will be charged an interest rate of ten percent (10%) annual percentage rate, or the maximum permitted by law, as a time price differential between the Services being paid for when due and the Services being paid for on credit.
(e) No payment will be refunded by the Developer for Services completed. If payment is made from the Company to the Developer for future Services that have not been render or partially rendered, the Company will refund such amounts less any costs, expenses and fees earned in the Developer’s providing Services.
3. Independent Contractor.
Developer is an independent company and neither Developer nor Developer's staff is, or shall be deemed, Company's employees. In its capacity as an independent company, Developer agrees and represents, and Company agrees, as follows:
(a) Developer has the right to perform Services for others during the term of this Agreement subject to non-competition provisions set out in this Agreement, if any.
(b) Developer has the sole right to control and direct the means, manner and method by which the Services required by this Agreement will be performed.
(c) Developer has the right to perform the Services required by this Agreement at any place or location and at such times as Developer may determine.
(d) Developer will furnish all equipment and materials used to provide the Services required by this Agreement, except to the extent that Developer work must be performed on or with Company's computers or existing software.
(e) The Services required by this Agreement shall be performed by Developer's staff or authorized sub-contractors.
(f) Developer is responsible for paying all ordinary and necessary expenses of its staff.
(g) Neither Developer nor Developer's staff shall be required to devote full-time to the
performance of the Services required by this Agreement.
(h) Company shall not provide any insurance coverage of any kind for Developer nor Developer's staff.
(i) Company shall not withhold from Developer's compensation any amount that would normally be withheld from an employee's pay.
(j) Developer should complete each milestone and project goal within the time frame proposed by Developer’s team that aligns with Company’s timeline to the best of their abilities. For unanticipated, out-of-scope, work please refer to section 22.
At its own expense, Developer may use employees or subcontractors to develop the Software or otherwise complete the Work. The Company agrees this is not an agreement for personal services and no specific individual or entity is required to provide the Services. . All subcontractors will directly work under, and through Developer. Developer is responsible for signing their contracts and paying them.
(i) The Company permits Developer to disclose Confidential Information, as defined in Section 6 below, to subcontractors to the extent such disclosure is required to provide the Servicest; provided that any such subcontractors are contractually bound in writing by a nondisclosure agreement provided by Developer and within the same terms as the original confidentiality terms described below.
4. Intellectual Property Ownership.
(a) Work Made for Hire. Developer agrees that the Services (but excluding Developer Tools) are “work made for hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that upon payment in full, the Services will be the sole property of Company. “Developer Tools” means the materials, information, trade secrets, generic programming codes and segments, algorithms, methodologies, processes, tools, data, documents, notes, programming techniques, reusable objects, routines, formulae and templates that: (a) are developed prior to the Effective Date and utilized by Developer in connection with the Services; (b) are designed to perform generalized functions not specific to the particular requirements Company or the Services; (c) do not contain any of Company’s confidential Information or other information or items provided by Company; and (d) cannot reasonably be expected to provide Company an advantage over its competitors.
(b) Assignment. Except for any work performed by Developer does not qualify as a “work made for hire” under applicable law, Developer hereby irrevocably and unconditionally assigns to Company, without further compensation, all of its right, title and interest in and to the work product derived from the Services (the “Work Product”) and any and all related patents, copyrights, trademarks, and trade names in the United States and elsewhere. This assignment is conditioned upon full payment of the compensation due to Developer under this Agreement. Company shall reimburse Developer for reasonable out-of-pocket expenses Developer incurs as a result of any actions necessary to assign any Work Product to the Company including attorney fees and costs.
(c) Marketing Work Product. Developer hereby assigns to Company all right, title and interest in the work produced resulting from the Services, except that Developer may publicly display the general aspects of Work Product, i.e., for use in portfolios, exhibitions and other self- promotion channels.
(a) Unless stated otherwise in this Agreement, Developer will not use or disclose to others without Company's consent, Company's confidential information, except when reasonably necessary to perform the Services. "Confidential information” includes, but is not limited to:
(i) the written, printed, graphic or electronically recorded materials stamped "confidential," or "proprietary" furnished by Company for use by Developer;
(ii) Company's business plans, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries and improvements of any kind stamped "confidential," or "proprietary"; and
(iii) any written or tangible information not marked with a confidentiality legend, or information disclosed orally to Developer, that is treated as confidential when disclosed and later summarized sufficiently for identification purposes in a written memorandum marked "confidential" and delivered to Developer, within 30 days after the disclosure.
(b) Developer shall not be restricted in the use of any material which is publicly available, already in Developer's possession or known to Developer, without restriction, or which is rightfully obtained by Developer from sources other than Company.
6. Termination of Agreement.
(a) Developer may terminate this Agreement immediately should any payment due from the Company under this Agreement become more than fifteen (15) days past due. Developer will have no obligation to provide notice to the Company of any amounts past due.
(b) Either Party may terminate this Agreement if the other Party has materially breached any obligation herein and such breach remains uncured for a period of thirty (30) days after notice thereof is sent to the other Party unless this time period is modified by another provision in this Agreement.
(c) Upon termination for any reason, any and all fees payable to Developer for Services rendered shall be paid within fifteen (15) days including any and all pro-rated amounts for partially completed Services.
(d) The Company will be responsible for any and all fees and costs incurred by the Developer in collecting any amounts owed including, but not limited to, actual attorney fees.
7. Return of Materials.
Upon termination of this Agreement, each Party shall promptly return to the other all data, materials and other property of the other held by it if requested by either Party within three (3) days.
8. Warranties and Representations.
(a) Developer has the authority to enter into this Agreement and to perform all obligations hereunder.
(b) Any website Work Product provided by Developer will be compatible with the most current web browsers (at the time the website is take live) provided by Firefox, Google, Apple and Microsoft. Support for older browser versions is not included unless specifically detailed in the Sprint Agreement.
(c) For a period of 90 days (“Warranty Period”) following completion of the Services, the Work Product will be:
(i) Free from reproducible programming errors and defects in workmanship and materials under normal use, and
(ii) Perform substantially in conformance with the specifications and functions set forth in this Agreement, and in accordance with the current, up-to-date web and mobile standards at the time of launch.
(d) Support Period. If development of an application is part of the Services, the Developer agrees to provide continued support for the Application System for 90 days after the software (iPhone, Android, web application) is successfully approved on the Apple Store, Google Play store, or hosted on the web respectively (the “Support Period”). The Support Period shall refer to any bugs or issues relating to the features specified in the Sprint Agreement, and not to create new functionality. This support, after the launch of the application, will be provided to the Company at the rate agreed upon in the Sprint Agreement. Any additional work or changes to the Work Product shall be performed under a new Sprint Agreement between the Parties.
(e) Unforeseen Standard Changes. Any warranty or agreement for support provided in this Agreement does not include any unforeseen changes in any web or mobile standards that occur during the warranty or support period. Developer can provide updates to any Work Product in order to bring it into compliance with the updated changes in web or mobile standards. Such updates will be considered additional work and will be agreed upon by the Parties in writing.
(f) THIS SECTION 9 IS A LIMITED WARRANTY, AND SETS FORTH THE ONLY WARRANTIES MADE BY DEVELOPER. DEVELOPER MAKES NO OTHER
WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY DEVELOPER. COMPANY MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIODS SET FORTH IN THIS AGREEMENT. DEVELOPER DOES NOT GUARANTEE COMPANY WILL ACHIEVE CERTAIN SALES OR INCOME RESULTS AS A RESULT OF DEVELOPER’S SERVICES.
(g) The Company agrees that Developer has made no representations or warranties related to the Work Product and will not be liable for any vulnerable security threats due to lack of updates, third-party software/code, security infrastructure or maintenance, updates or changes performed by the Company or third parties to this Agreement.
(h) The Company is solely responsible for all compliance requirements with any laws or regulations set by any governing body as may be applicable to the Work Product. The Company acknowledges that it has retained Developer for performance of the Services and that Developer has not represented or warranted that it possesses any legal or compliance expertise. The Company acknowledged that it has been notified to seek out legal and/or compliance experts to ensure that the Work Product is compliant with any law, regulation or rule.
9. Limitation of Liability.
DEVELOPER SHALL NOT BE LIABLE FOR ANY: INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR LOSS OF USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO COMPANY FOR A BREACH OF THIS AGREEMENT, SPRINT AGREEMENT OR WRITTEN POLICY OF DEVELOPER. IN THE EVENT OF A BREACH OR FAILURE OF ANY OBLIGATION OF DEVELOPER, COMPANY’S DAMAGES SHALL BE LIMITED TO THE AMOUNT PAID BY COMPANY UNDER THE TERMS OF THIS AGREEMENT FOR THE THREE MONTHS PRECEEDING THE BREACH OR FAILURE.
10. Hosting & Server.
(a) Company acknowledges that Developer does not directly provide any type of hosting, email, server resources or domain registration.
(b) Company acknowledges that any hosting, email, server resources or domain registration services purchased by Company from Developer are being provided by a third party.
(c) Company acknowledges that Developer provides no guarantees or warranties related to hosting services, email, server resources or domain registration and Company agrees that he/she can under no circumstances regain any possible loss of income or business from
Developer due to a server breakdown or service interruption. Company agrees that Developer can never be held liable for any possible data losses or service disruptions.
11. No Violation of Intellectual Property.
(a) It is understood that Developer will rely exclusively on Company to provide Developer with material and information that Company is legally entitled to own and utilize.
(b) Developer is not responsible in any way for checking, verifying, searching or ensuring the validity, status, authenticity, of any intellectual property.
(c) Company, at its expense, will defend, indemnify, and hold Developer harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, after all rights of appeal are exhausted, against Developer which directly relate to a claim, action, lawsuit, or proceeding made or brought against Developer by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, trademark or other rights by way of Developer's use of any Company provided material and information that Company provides to Developer and Developer uses in the provision of any services.
12. Company’s Cooperation.
Company agrees to fully cooperate in Developer’s efforts to provide Services under this Agreement. Delays or failure to complete work due to Company’s failure to provide information, materials or respond to demands for assistance by Developer, will not be considered a breach of this Agreement by Developer. Company will remain responsible for all amounts owed under the terms of this Agreement if work is not completed or is delayed as a result of the Company’s failure to provide information, materials or respond to demands for assistance by Developer.
13. Force Majeure.
(a) If a party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations (other than the payment of monies) under this Agreement by a Force Majeure Event:
(i) The Affected Party’s obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed;
(ii) As soon as reasonably possible after the start of the Force Majeure Event the Affected Party shall notify the other Party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
(iii) The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and
(iv) As soon as reasonably possible after the end of the Force Majeure Event the Affected Party shall notify the other Party in writing that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.
(b) If the Force Majeure Event continues for more than three months starting on the day the Force Majeure Event starts, the non-Affected Party may terminate this Agreement by giving not less than 30 days’ written notice to the Affected Party.
(c) In this clause, “Force Majeure Event” means an event beyond the reasonable control of the Affected Party including, without limitation, act of God, war, riot, civil commotion, malicious damage, pandemic, compliance with a law or governmental order, rule, or regulation , an accident or breakdown of plant or machinery not due to the negligence of the Affected Party, fire, flood and storm.
14. General Provisions.
(a) Entire Agreement. This Agreement along with the Sprint Agreement comprise the entire Agreement between Developer and Company.
(b) Severability. If any of the provisions of these Agreement or the Sprint Agreement or its application to any party under any circumstances is adjudicated to be invalid or unenforceable, the invalidity or unenforceability shall not affect any other provision of this Agreement or its application.
(c) Applicable law/Choice of Venue. This Agreement shall be governed by the laws of the state of Michigan, and all claims, disputes and other matters between the parties of this agreement shall be brought in Kent County Court, in Grand Rapids, Michigan, or in the U.S. District Court, in Grand Rapids, Michigan. Parties waive any objection to personal jurisdiction or venue in any forum located in those jurisdictions.
(d) Notices. All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
(i) When delivered personally to the recipient's address;
(ii) Seven days after being deposited in the United States mails, postage prepaid
to the recipient's last known valid US address; or
(iii) When sent by fax or electronic mail. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
Any party may change its address appearing on the Service Agreement related to these Terms and Conditions by giving notice of the change in accordance with this paragraph.
(e) No partnership. This Agreement does not create a partnership relationship. neither Party has the authority to enter into contracts on behalf of the other Party.
(f) Waiver. This Agreement and the Sprint Agreement may not be amended except by an instrument in writing signed on behalf of each Party. No amendment, supplement, modification, or waiver of this Agreement and Sprint Agreement will be binding unless executed in writing by the Party to be bound by it. No waiver of any of the provisions of this Agreement and Sprint Agreement will be deemed or will constitute a waiver of any other provision (whether or not similar), nor will the waiver constitute a continuing waiver unless otherwise expressly provided.
(g) Each Party executing this Agreement and Sprint Agreement acknowledges and agrees that such Party has carefully read and fully understands the Entire Agreement and is executing this Entire Agreement after due consideration and the opportunity to consult with legal counsel.
IN WITNESS WHEREOF, Customer and Developer have executed this Software Development Agreement effective on the date first above written.