TERMS AND CONDITIONS

This Custom Software Development Agreement (the “Agreement”) is entered into as of ________________, effective as of ________________ (the “Effective Date”) by and between Authoritek, (the “Developer”), and _____ (the “Company,” and together with the Developer, the “Parties”). This Terms and Conditions will serve as a baseline agreement, and any additional sprints and services between the Developer and Client will be written out on a "Sprint Agreement" which will hold true to both this Term and Conditions and the "Sprint Agreement"

The Parties agree as follows:


1. Services Performed by Authoritek.
 

Authoritek agrees to perform the services described in Exhibit A of the Sprint Agreement (“Service Agreement”), which is attached to and fully incorporated with these Terms and Conditions. 



2. Payments.             
                                                                                                           

(a) All payment amounts and related payment information is contained in Exhibit A of the Sprint Agreement (“Sprint Agreement”) for this project.
                                                                       
(b) All fees for ongoing monthly services are billed in advance of the service being rendered.
                                                                       
(c) Services performed on an hourly basis are invoiced on a regular basis and payment is due in accordance with the payment terms indicated on the invoice.
                                                                       
(d) Failure to pay an invoice or make a payment within 15 days of the date it is due will result in a 10% service charge for each unpaid monthly invoice or missed payment (each occurrence).
                                                                       
(e) Failure to pay an invoice or make a payment on the date it is due may result in the termination of all services at the sole discretion of Authoritek.
                                                                       
(f) Client will be responsible for any and all costs and expenses incurred by Authoritek in order to collect amounts owed under the terms of this agreement including but not limited to collection costs including attorney fees and costs.
                                                                                               

           
3. Expenses.
                                                                       

(a) The fees and expenses shown in Exhibit A of the Sprint Agreement (“Service Agreement”) are estimated fees and expenses.
                                                                       
(b) The Client’s approval shall be obtained for any increases in fees or expenses that exceed the original estimate by ten percent (10%) or more.
                                                                       
(c) Out of scope work and additional services shall be billed at the rate agreed upon in Exhibit A of the Sprint Agreement.
                                                           


4. Invoices.
                                                                                   

(a) Authoritek shall submit invoices for the project fees as indicated in Exhibit A of the Sprint Agreement (“Service Agreement”)
                                                                                   
(b) Authoritek shall submit invoices for any hourly and/or out of scope work performed and payment is due in accordance with the payment terms indicated on the invoice.
                                                                                   
(c) Authoritek shall NOT submit invoices for services rendered as part of any monthly services package.
                                               
(d) Client agrees to pay any project fees in accordance with the payment details and schedule indicated in Exhibit A of the Sprint Agreement (“Service Agreement”).



5. Authoritek is an independent company and neither Authoritek nor Authoritek's staff is, or shall be deemed, Client's employees. In its capacity as an independent company, Authoritek agrees and represents, and Client agrees, as follows: 
                                   

                                                                       
(a) Authoritek 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) Authoritek 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) Authoritek has the right to perform the services required by this Agreement at any place or location and at such times as Authoritek may determine.
                                                                       
(d) Authoritek will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Authoritek work must be performed on or with Client's computers or existing software.
                                                                       
(e) The services required by this Agreement shall be performed by Authoritek's staff or authorized sub-contractors.
                                                                       
(f) Authoritek is responsible for paying all ordinary and necessary expenses of its staff.
                                                                       
(g) Neither Authoritek nor Authoritek's staff shall be required to devote full-time to the performance of the services required by this Agreement.
                                                                       
(h) Client shall not provide any insurance coverage of any kind for Authoritek nor Authoritek's staff.
                                                                       
(i) Client shall not withhold from Authoritek's compensation any amount that would normally be withheld from an employee's pay.

(j) Authoritek should complete each milestone and project goal within the time frame proposed by Authoritek’s team that aligns with Client’s timeline to the best of their abilities. For unanticipated, out-of-scope, work please refer to section 22.

(k) Subcontractors

(i) The Parties are and remain independent contractors. At its own expense, Developer may use employees or subcontractors to develop the Software or otherwise complete the Work. Nothing in this Agreement will be deemed to create an agency, partnership, or joint venture between the Parties. Neither Party has authority to bind the other or incur any liability or otherwise act on behalf of the other Party.          

(ii) All subcontractors will directly work under, and through Authoritek. Authoritek is responsible for signing their contracts and paying them. Subcontractors for this project will all work in a single unit under Authoritek as a team, and not under another company via partnership with Authoritek.

(iii) Developer may disclose Confidential Information or Joint Confidential Information, as the case may be, to subcontractors to the extent such disclosure is required to conduct the development and creation of Work Product; provided that any such subcontractors are contractually bound in writing by a Non-Disclosure agreement provided by Authoritek and within the same terms as the original confidential agreement provided by Client to Authoritek.

(l) Employment of Assistants and Contract.                                                  
                                                                       
(i) Authoritek may, at Authoritek's own expense, employ such assistants or contractors as Authoritek deems necessary to perform the services required by this Agreement.
                                                                       
(ii) Authoritek warrants and represents that the Work Product shall be created solely by Authoritek's employees during the course of their employment or independent contractors who assigned all right, title and interest in the work to Authoritek.



6. Intellectual Property Ownership.
                                                                                                                       

(a) Work Made for Hire. Developer agrees that the development of the Software (but excluding Developer Tools) is “work made for hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that the Software shall be the sole property of Client.  “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 Software and utilized by Developer in connection with the Software; (b) are designed to perform generalized functions not specific to the particular requirements Client or the Software; (c) do not contain any of Client’s confidential Information or other information or items provided by Client; and (d) cannot reasonably be expected to provide Client an advantage over its competitors.
                                                                       
(b) Assignment. To the extent any Work performed by Developer does not qualify as a “work made for hire” under applicable law. Developer hereby irrevocably and unconditionally assigns to Client, without further compensation, all of its right, title and interest in and to the Software 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. To the extent any of the Developer’s rights in the Software, including without limitation any moral rights, are not capable of assignment under applicable enforcement of such rights to the maximum extent permitted under applicable law. Developer will assist Client in obtaining and enforcing patent copyright and other forms of legal protection for the Software in any country. Upon request, Developer will sign all applications, assignments, instruments and papers and perform all acts necessary or desired by Client to assign the Software fully and completely to Client and to enable Client, its successors, assigns and nominees, to secure and enjoy the full and exclusive benefits and advantages of the Software; however, Client shall reimburse Developer for reasonable out-of-pocket expenses.
                                                                       
(c) Marketing Work Product. Developer hereby assigns to Client all right, title and interest in the work produced under this Agreement, except that Developer may publicly display the general aspects of work product, i.e., for use in portfolios, exhibitions and other self-promotion channels. If much of the Work Product includes industry secrets, Authoritek will seek approval before Authoritek publicy displays Work Product in any of these channels. Authoritek may privately disclose aspects of Work Product on a 1-to-1 basis with prospective clients seeking valid portfolio work, unless Client requests 100% confidentiality.

(d) Sprint Payments. “Full Payment of compensation” in 6(b) will refer to the individual payments for each sprint in this project. Once a sprint has been completed, and client has paid in full, the condition of full payment will be met for the respective work product outlined for that sprint and this contract.

                                               
                                   
7. Confidential Information:
                       

(a) Authoritek will not use or disclose to others without Client's consent Client's confidential information, except when reasonably necessary to perform the services under this Agreement. "Confidential information” includes, but is not limited to:

i. the written, printed, graphic or electronically recorded materials stamped "confidential," or "proprietary" furnished by Client for use by Authoritek,
                                                                       
ii. Client'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"
                                                                       
iii. any written or tangible information stamped "confidential," "proprietary" or with a similar legend, and
                                                                       
iv. any written or tangible information not marked with a confidentiality legend, or information disclosed orally to Authoritek, that is treated as confidential when disclosed and later summarized sufficiently for identification purposes in a written memorandum marked "confidential" and delivered to Authoritek, within 30 days after the disclosure.

v. Any written or tangible information not marked with a confidentiality legend, or information disclosed orally to subcontractors managed by Authoritek, that is treated as confidential when disclosed and later summarized sufficiently for identification purposes in a written memorandum marked "confidential" and delivered to subcontractors managed by Authoritek.
                                                                       
(b) Authoritek shall not be restricted in the use of any material which is publicly available, already in Authoritek's possession or known to Authoritek, without restriction, or which is rightfully obtained by Authoritek from sources other than Client.
                                                                       
(c) Authoritek's obligations regarding proprietary or confidential information extend to information belonging to customers and suppliers of Client about whom Authoritek may have gained knowledge as a result of Client's services to Client.
                                                                       
(d) Authoritek will not disclose to Client information or material that is a trade secret stamped "confi " or "proprietary" of any third party.
                                                                       
(e) The provisions of this clause shall survive any termination of this Agreement.



8. Termination of Agreement.
                                                                       

(a) Should Authoritek (1) fail to complete work part of any milestone identified in
Exhibit A of the Sprint Agreement (“Service Agreement”) Section or (2) produce work that does not meet the industry standards for the features set forth by the Client at the start of work, Authoritek shall be deemed in breach of this agreement and only entitled to payment for that work which has been completed to the industry standards of features previously set forth by Client, and Authoritek shall immediately provide to Proposer all work completed, with all rights thereto deemed transferred from Authoritek to Client.

(b) Each party has the right to terminate this Agreement if the other party has materially breached any obligation herein and such breach remains uncured for a period of 30 days after notice thereof is sent to the other party unless this time period is modified by another provision in these Terms and Conditions.
                                                                       
(c) If the Service Agreement is terminated any and all fees payable to Authoritek for services rendered shall be paid within 15 days including any and all pro-rated amounts for partially completed services.   



9. 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 (3) three days.

 

10. Warranties and Representations.                                            
                                                                       

(a) Authoritek has the authority to enter into this Agreement and to perform all obligations hereunder.
                                                                       
(b) Any website work product provided by Authoritek 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 Service agreement.
                                                                       
(c) For a period of 90 days (“Warranty Period”) following launch of the Work Product as described in Exhibit A of the Sprint Agreement, the Work Product will be:

i. Free from reproducible programming errors and defects in workmanship and materials under normal use, and
                                                                       
ii. Time of Launch Standards. 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.

iii. Support Period. 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 Exhibit A of the Sprint Agreement, and not to create new functionality for the Application System. This support, after the final launch of the product, will be provided to the Company at the reduced rate agreed upon in Exhibit A.

The Support period reduced rates only apply after the final product has been fully launched. All other maintenance and bugs worked on during development are a natural part of the development process, and will be charged at a normal rate. When a sprint is completed, and errors and bugs are identified, the maintenance for these issues will carry over into the following sprint and be included in the sprint cost.

iv. Unforseen Standard Changes. If there are unforeseen changes in web or mobile standards over the course of these 90 days, Authoritek's warranty will not be liable to cover these changes to meet the standards. However, we will make ourselves available for quick, paid maintenance to meet these new standards.

v. Mobile Application Launching and Support. According to 11(b), we will support stated previous versions of iOS and Android, up to the most current version at the time of launch. Alongside the native support for these operating systems, Authoritek will be responsible for meeting all standards set forth by Apple and Google to release applications on their respective mobile application stores. This includes, and is not limited to, high resolution screenshots, working video of app flow, test data/accounts used for approval process, and proper description/text required by the stores. Authoritek would like to state that they are not responsible for the creation of legal documentation required by Apple and Google for launching (Privacy Policies, Terms of Service, User Agreement, etc.). Finally, Authoritek will launch the applications on their own App Store and Play Store accounts, unless the client provides and pays for their own developer license ($100/yr for Apple, $25 flat fee for Android).

(d) No Infringement. Developer warrants that this Software and product will not infringe on any copyright, patent, trade secret or other intellectual property interest of any third party. Developer will indemnify and hold Client harmless and against all such infringement claims, losses, suits and damages including, but not limited to attorney’s fees and costs. Following any bonafide claim of infringement, Developer shall promptly correct the Software so as not to be infringing.
                                                                       
(e) THIS SECTION 11 IS A LIMITED WARRANTY, AND SETS FORTH THE ONLY WARRANTIES MADE BY Authoritek. Authoritek MAKES NO OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MER- CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY WAR- RANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY Authoritek CLIENT 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 PERIOD. Authoritek DOES NOT GUARANTEE CLIENT WILL ACHIEVE CERTAIN SALES OR INCOME RESULTS AS A RESULT OF Authoritek’S SERVICES.



11. Limitation of Liability.

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING AS A RESULT TO PERFORMANCE OF THE WORK. REGARDLESS OF THE TYPE OF CLAIM AND EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. TO THE EXTENT ALLOWED BY LAW, CLIENT WILL INDEMNIFY AND HOLD DEVELOPER HARMLESS AGAINST ANY CLAIMS INCURRED BY DEVELOPER ARISING OUT OF OR IN CONJUNCTION WITH CLIENT’S BREACH OF THIS AGREEMENT. AS WELL AS REASONABLE COSTS, EXPENSES, AND ATTORNEYS FEES INCURRED THERIN.



12. Hosting & Server.
                                                                       

(a) Client acknowledges that Authoritek does not directly provide any type of hosting, email, server resources or domain registration.
                                                                       
(b) Client acknowledges that any hosting, email, server resources or domain registration services purchased by client from Authoritek are being provided by a third party.
                                                                       
(c) Client acknowledges that Authoritek provides no guarantees or warranties related to hosting services, email, server resources or domain registration and
Client agrees that he/she can under no circumstances regain any possible loss of income or business from Authoritek due to a server breakdown or service interruption. Client agrees that Authoritek can never be held liable for any possible data losses or service disruptions.

                       

13. Search Engine Optimization.                                                   
                                                                       

(a) Authoritek accepts no responsibility for policies of third-party search engines, directories or other Web Sites (“Third-party resources”) that Authoritek may submit to with respect to the classification or type of content it accepts whether now or in the future. Client’s Web Site or content may be excluded or banned from any Third-party resource at any time. Client agrees not to hold Authoritek responsible for any liability or actions taken by Third-party resources under these Terms and Conditions.
                                                                       
(b) Client acknowledges that the nature of many of the resources Authoritek may employ under these Terms and Conditions are competitive in nature. Authoritek does not guarantee #1 positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Client acknowledges that Authoritek’s past performance is not indicative of any future results Client may experience.
                                                                       
(c) Client acknowledges that SEO and submissions to search engines and directories can take an indefinite amount of time for inclusion, unless paid inclusion programs are employed. Each edit or change made to any resources employed by Authoritek will repeat these inclusion times.
                                                                       
(d) Client acknowledges that any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
                                                                       
(e) Client acknowledges that search engines may drop listings from its database for no apparent or predictable reason. Authoritek shall re-submit resources to the search engine based on the current policies of the search engine in question and whether pay inclusion programs are being used.
                                                                       
(f) Authoritek will endeavor to make every effort to keep Client informed of any changes that Authoritek is made aware of that impact any of the SEO Services and the execution thereof under this Agreement. Client acknowledges that Authoritek may not become aware of changes to Third-party resources, industry changes or any other changes that may or may not affect SEO services.
                                                                       
(g) Client acknowledges that some of the Third-party resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees. These fees have been included in Clients payments to Authoritek. If Client fails to pay Authoritek any portion of the agreed upon monthly payment, Authoritek will not put any portion of Client’s payment toward required fees by these Third-party resources.
                                                                       
(h) Authoritek reserves the exclusive right, for the duration of these Terms and Conditions, to approve or disapprove any design strategies, existing code or other techniques, whether requested by Client or presently employed by Client that are considered by Authoritek to be detrimental to SEO and the execution of Authoritek’s services under these Terms and Conditions.                                                         



14. No Violation of Intellectual Property.                                      

                                                                       
(a) It is understood that Authoritek will rely exclusively on Client to provide Authoritek with material and information that Client is legally entitled to own and utilize.
                                                                       
(b) Authoritek is not responsible in any way for checking, verifying, searching or ensuring the validity, status, authenticity, of any intellectual property.
                                                                       
(c) Client, at its expense, will defend, indemnify, and hold Authoritek harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, conse- quential, 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 Authoritek which directly relate to a claim, action, lawsuit, or proceeding made or brought against Authoritek 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 Authoritek's use of any Client provided material and information that Client provides to Authoritek and Authoritek uses in the provision of any services.



15. Client’s Cooperation.
 

Client agrees to fully cooperate in Authoritek’s efforts to provide services under this Agreement. Delays or failure to complete work due to Client’s failure to provide information, materials or respond to demands for assistance by Authoritek, will not be considered a breach of this Agreement by Authoritek. Client 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 Client’s failure to provide information, materials or respond to demands for assistance by Authoritek.

           

16. General Provisions.                                                       
                                                                       

(a) Entire Agreement. These Terms and Conditions along with the Service Agreement comprise the entire Agreement between Authoritek and Client.
                                                                       
(b) Severability. If any of the provisions of these Terms and Conditions or the Service 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.

                                                                       

(e) 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.
                                                                       
(f) No partnership. This Agreement does not create a partnership relationship. Authoritek does not have authority to enter into contracts on Client's behalf.
                                                                       
(g) Waiver. These Terms and Conditions and the Service Agreement may not be amended except by an instrument in writing signed on behalf of each Party. No amendment, supplement, modifi- cation, or waiver of these Terms and Conditions and Service Agreement will be binding unless executed in writing by the Party to be bound by it. No waiver of any of the provisions of these Terms and Conditions and Service 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.
                                                                                                                                               
(h) Each party executing these Terms and Conditions and Service 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.

(i) Refund Policy for Digital products or any Professional Services:

 


17. No Conflict of Interest; Other Activities.
 

  1. The Developer hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, the Developer is free to engage in other development activities; provided, however, the Developer shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Developer’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement.


18. Addition to Project Hours.
 
  1. Changes to Scope
In the event Client wishes to make any modification to the Work, Client must provide a detailed proposal to Developer in writing specifying the desired changes (“Change Request”). Developer will evaluate each Change Request at its standard rates and charges. Developer shall submit to Client a written response to each change Request within 5 business days following receipt thereof (“Change Request Response”). Developer's Change Request Response shall include a statement of the availability of Developer’s personnel and resources, as well as any impact the warranty provisions of this Agreement. Client shall use its reasonable efforts to accept, reject, or propose modifications to each such Change Request Response within 5 business days following receipt thereof. Upon acceptance by Client of a Change Request Response and its corresponding Change request, the Work shall be amended by means of a written, jointly executed, addendum to Exhibit “A” of this Agreement.
 
  1. Underestimation of Project Scope
In the event that the Developer is unable to complete a product feature or milestone within the time estimated for and approved by client, Authoritek must provide a detailed proposal to Client in writing specifying the specific feature that requires more time (“Additional Time Request”). Client will evaluate Additional Time Request in the standard rates and charges. Client shall submit to Developer a written response to each Additional Time Request within 5 business days following receipt thereof (“Additional Time Request Response”). Developer’s Additional Time Request shall include a statement of the feature(s) at hand, the number of additional hours requested, and the reasoning behind the need for additional time, as well as any impact the warranty provisions of this Agreement. Client shall use its reasonable efforts to accept, reject, or propose modifications to each such Additional Time Request within 5 business days following receipt thereof. Upon acceptance by Client of an Additional Time Request, the Work shall be amended by means of a written, jointly executed, addendum to Exhibit “A” of this Agreement.
 
 

Client - Legal Business Name

Signature
 
Name:
Title:
Date: