Terms & Conditions
1.1. “Confidential Information” shall mean all material and information supplied by Customer that has or will come into Developer’s possession or knowledge of Developer in connection with its performance hereunder. Confidential information does not include information that:
(a) is or becomes public knowledge through no fault of Developer;
(b) Developer knew before Customer disclosed it;
(c) Developer obtains from sources other than Customer who owe no duty of confidentiality to Customer; or
(d) Developer independently develops.
1.2. “Deliverables” shall mean a listing of all items to be delivered to Customer under this Agreement.
1.3. “Derivative Work” shall mean a work that is substantially based on any preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement under the United States Copyright Act.
“Derivative Work” shall mean a work that is substantially based on any preexisting works.
1.4. “Open Source License Agreement” means the terms under which Software is licensed in source code form to the general public for use without charge, including without limitation any license agreement that
(a) conditions the use or distribution of any Software program that incorporates such Software on the disclosure, licensing or distribution of the source code of such program (including such Software) and
(b) otherwise materially limits a licensee’s freedom of action with regard to seeking compensation in connection with licensing or distributing such program or Software in object code form, including without limitation the GNU General Public License or the GNU Lesser General Public License.
1.5. “Open Source Software” means Software licensed pursuant to the terms of an Open Source License Agreement.
1.6. “Schedule” shall mean the delivery dates for each Deliverable.
1.7. “Specifications” shall mean the specifications for the Software as directed by Customer, together with any modifications that may be agreed to in writing by the parties during the term of this Agreement.
2. Duties and Responsibilities.
2.1. Specifications. Customer shall define the Specifications and Deliverables.
2.2. Development. Developer shall design, develop, and implement the Software in accordance with the Specifications and Deliverables.
(a) Training Scope. Developer shall provide Customer with such training as may reasonably be requested by Customer on the use of the Software.
(b) Training Dates and Locations. The training will be conducted on such dates and locations as the parties may agree.
2.4. Maintenance. Developer shall perform remedial and preventive maintenance for the Software after its acceptance so that the Software continues to perform in accordance with the technical design. Customer and Developer shall negotiate the terms and price of such maintenance services, but Developer shall not charge Customer more than $175 per hour for the first two years of maintenance services after acceptance of the Software. Customer shall have the right to terminate such maintenance services at any time upon thirty (30) days written notice to Developer. Developer shall have the right to terminate such maintenance services upon thirty (30) days written notice to Customer if Customer is in material breach of the maintenance agreement between Customer and Developer and remains in material breach for such thirty (30) days.
3. Delivery and Acceptance of Custom Software.
3.1. Acceptance Period. Customer will have 15 days following the date of deployment to assess and test the Software. Software will be assumed to be accepted after 15 days unless Customer explicitly rejects the software.
3.2. Completion. If Developer delivers the Software in accordance with the Specifications or Deliverables, then Developer shall be deemed to have completed its delivery obligations.
3.3. Rejection. If Developer fails to deliver the Software in accordance with the Specifications or Deliverables, then:
(a) Notification. Customer shall detail in writing its grounds for rejection within the Acceptance period; and
(b) Rectification. Developer shall correct the Software and upon delivery of such correction, the process of acceptance, completion, and rejection shall restart.
4.1. Change Orders. Customer may request changes to the Specifications, Deliverables, or Schedules.
4.2. Additional Time or Expense. If the proposed change will, in the reasonable opinion of Developer, require a delay in delivery of the Software or would result in additional expense, then:
(a) Customer and Developer shall confer; and
(b) Customer may elect to either:
(i) withdraw its proposed change, or
(ii) require Developer to deliver the Software with the proposed change, subject to the delay and/or additional expense.
5.1. Development Costs. Customer shall pay Developer:
(a) 20% deposit based on estimated hourly development costs plus annual and one-time costs upfront; and
(b) balance of incurred hourly development costs and additional expenses billed monthly; and
(c) other one-time or recurring Developer costs as they arise, including but not limited to costs for hosting, licensing, hardware, infrastructure, travel and related expenses, software, services, or payments to other third-parties.
Standard payment terms are net 15 days.
In the event that Customer fails to pay any amount due pursuant to this Section within 15 days of the corresponding due date, Developer may charge Customer a one and one-half percent (1.50%) monthly finance charge to be calculated monthly with respect to all outstanding amounts not paid by the due date, but in no event will any finance charge exceed the maximum allowed by law.
Customer responsible for paying for required software, licenses, advertising fees, hosting, hardware and infrastructure, network, and all other third party services and fees directly to vendor or reseller. In the event Developer acts as reseller.
Developer may be the reseller of third party services, licenses, or fees. In which case, such costs will be billed to Customer as they are incurred with the same terms as described in this Section of this Agreement.
These estimates may be adjusted upon Discovery with prior agreement of Customer and Developer.
Customer shall respond to all Developer inquiries in a timely fashion to avoid cost overruns.
5.2. Expenses. Customer will reimburse Developer for all reasonable expenses incurred by Developer during the development of the Software.
5.3 Hosting. If Customer pays Developer for hosting services, such services may include access to licenses owned by Developer. Customer is responsible for purchasing all licenses upon termination of hosting agreement.
6. Ownership of Software.
Developer agrees that the custom development of the Software is “work 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 Customer. Developer assigns to Customer its entire right, title and interest in anything created or developed by Developer for Customer under this Agreement (“Product”) including all patents, copyrights, trade secrets and other proprietary rights. This assignment is conditioned upon full payment of the compensation due Developer under this Agreement.
6.1 Third Party Licenses.
Developer may incorporate licenses or services paid for by the Developer. Customer is responsible for costs of transferring such licenses or services should the Customer enhance or modify the custom software. Customer is responsible for all costs associated with such licenses, including recurring costs. The cost of such licenses are not refundable and Customer may only cancel such licenses subject to the Terms of Service of the third party software provider.
6.2 Customer Restrictions.
Customer will not distribute, license, loan, modify, alter, reverse engineer, or sell third party software.
Customer is responsible for compliance with any additional terms of service associated with third party software.
6.3 Export Compliance.
Customer will not export custom or third party software. Customer is responsible for obtaining all licenses, permits, and authorizations as required from time to time by the United States and other governments to export or serve custom software or Web sites.
This Agreement shall commence upon execution and continue until all of the obligations of the parties have been performed or until earlier terminated as provided herein.
8.1. No Infringement. Developer represents and warrants that the Software will not infringe on any patent, copyright, trademark, trade secret or other proprietary right of any person.
8.2. No Third Party Property. Developer represents and warrants that it will not use any trade secrets or confidential or proprietary information owned by any third party in developing the custom Software.
8.4 Ownership. Customer represents that any content, media (including audio and video), documents, processes, concepts, network, software, hardware, infrastructure, and other materials provided to the Developer are owned by the Customer and/or that the Customer has the legal right to use such material.
9.1. Performance. Developer warrants that for a period of 30 days following Deployment, the Software will operate substantially according to the Specifications.
9.2. Repair or Replace. Developer will repair the System during such 30 days as soon as possible after Customer informs Developer of any breach of this warranty.
9.3. Exclusions. This warranty excludes any claims based on defects in the Software caused by Customer, other parties beyond the control of Developer, or the hardware.
9.4. No Other Warranties. There are no express or implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, respecting this Agreement, the Software or Services.
Developer makes no warranty as to the performance or uptime of hosting services unless otherwise outlined in this proposal.
10. Acknowledgement-Relationship of the Parties.
10.1. Independent Contractor. Developer is an independent contractor and is not an employee or agent of Customer.
10.2. No Partnership. Nothing in this Agreement creates a partnership or joint venture between the parties.
10.3 Tax for Services. Developer is solely responsible for reporting and paying any tax or other cost assessed for services on the basis of the Customer’s payment of compensation to Developer under this Agreement and any applicable insertion orders.
Customer will not withhold any amount of compensation for Developer’s taxes.
Developer will use reasonable care to prevent the unauthorized use or dissemination of the Confidential Information.
If any third party brings a lawsuit or proceeding against Customer based upon a claim that the Software breaches the third party’s patent, copyright or trade secrets rights, and it is determined that such infringement has occurred, then Developer shall hold Customer harmless against any loss, damage, expense or cost, including reasonable attorney fees, arising from the claim as long as Customer uses the software in accordance with the agreement set out with the Developer.
Customer is responsible for any copyright, patent, trademark, or other infringement resulting from the use of any content, media (including audio and video), documents, processes, concepts, network, software, hardware, infrastructure, and other materials provided to the Developer or that the Customer directs the Developer to use. The Customer shall hold the Developer harmless against any loss, damage, expense or cost, including reasonable attorney fees, arising from the claim.
13. Limitation of Liability.
Neither party shall be liable for any special, indirect, incidental or consequential damages (including damages for loss of business, profits or any other loss) incurred or suffered in connection with the Software or services performed in connection with this agreement.
14.1 No Guarantee. Developer shall perform to the best of its understanding and ability in good faith. Developer cannot guarantee however that the activities will always achieve the results desired by the Customer.
14.2 Third Parties. Developer has the right to have certain work carried out by third parties.
14.3 Phases. Developer may perform work in phases. Developer may suspend work belonging to a subsequent phase until the Customer has approved in writing and/or paid for the work, deliverables, or hours of the previous phase.
15. Term and Termination.
15.1. Termination for Cause. This Agreement may be terminated by either party upon 30 days written notice to the other, if:
(a) the other party breaches any material obligation; and
(b) the breaching party fails to cure such breach within 30 of receipt of the notice.
15.2. Effect of Termination.
(a) Payment of Outstanding Fees. Customer shall pay Developer for all services rendered and work performed up to the date of termination.
(b) Return or Destruction. Within 30 days after the termination or expiration of this Agreement, Developer shall return, or at the option of Customer, Developer shall destroy all copies of Confidential Information and shall deliver written certification by an officer of Customer that Customer has complied with these requirements.
16. General Provisions.
16.1. Dispute Resolution. Any controversy or claim arising out of or relating to this contract shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
16.2. Notices. Any notice required by this Agreement or given in connection with it, shall be by email or in writing and shall be given to the appropriate party by personal delivery or a recognized overnight delivery service such as FedEx.
If to Developer:
6746 Blue Point Drive
Carlsbad, CA 92011
If to Customer:
Customer’s registered address.
16.3. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all understandings and agreements whether written or oral.
16.4. Amendment. No amendment or modification of this Agreement is valid unless in writing, signed by the parties.
16.5. Governing Law. This Agreement is governed by the laws of State of California in the County of San Diego, without regard to any conflict of law principles.
16.6. Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party.
16.7. No Waiver. The waiver or failure of either party to exercise any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
16.8. Supersedes Previous Agreements. This Agreement supersedes and replaces all previous oral or written agreements, memoranda, correspondence or other communications between the parties hereto relating to the subject matter hereof. Any other negotiations, commitments, agreements, and writings will have no further force or effect, and the parties to any such other negotiation, commitment, agreement, or writing will have no further rights or obligations thereunder unless explicitly agreed to in writing between the parties hereto.
16.9. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
Developer is authorized to use and reference Customer’s name, trade name, trademarks, service marks, logo, project description, project design, project architecture, products purchased, application functionality or product purchases or process enhancements, in communications (written, oral, or electronic), relating to the Developer’s publicity releases, portfolio, advertising, or sales activities or brochures, or similar materials or activities. Customer may require Developer at any time and for any reason to remove or discontinue such use.