jboeke/Sample Contract - Software Deliverable

## Sample Contract - Software Deliverable
## For educational purposes only! Not a substitute for individualized advice from a qualified legal practitioner. ##

SOFTWARE CONSULTING AGREEMENT

THIS AGREEMENT is entered into on <contract date> by and between Avie, LLC, (hereinafter "Developer") and <client company>, (hereinafter "Company").

RECITALS

WHEREAS, Company wishes to retain Developer to develop certain <software type> software (hereinafter defined and referred to as “Software”); and

WHEREAS, Developer has agreed to develop Software for the Company according to the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the parties hereby agree as follows:

AGREEMENT

1. Duties of Developer.

 a) Developer shall develop the Software and perform other tasks as are set forth in technical specifications for the Software contained in Schedule A. The parties estimate that the development time for the Software will total <estimated hours> hours.

 b) Developer will produce and provide to Company appropriate technical and training documentation for the Software.

2. Warranties and Representations. Developer warrants and represents that:

 a) The Software will meet the technical specifications of Schedule A hereto, and there will be no known errors, malfunctions or defects in the Software or any portion thereof at the time of delivery.

 b) Developer owns or shall own the entire right, title and interest in and to the Software and all proprietary rights therein, or Developer has or will have sufficient rights in and to the Software and all proprietary rights therein to fulfill its obligations under this Agreement.

 c) Developer has the right to enter into this Agreement, to grant to the Company the rights and licenses set forth herein, and to perform all other obligations of this Agreement.

 d) THE SOFTWARE IS TO BE PROVIDED ON AN “AS IS” BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.

3.Duties of Company.

 a) Upon delivery of the Software by Developer, Company will promptly review and test the Software for compliance with the technical specifications.

 b) Company will notify Developer within 14 days following delivery that Company either accepts or rejects the Software and all deliverables and tasks, but all of the foregoing shall be deemed accepted, if not rejected in writing by Company within 21 days after Developer delivers the Software.

4. Change Orders.

 a) In the event that Company desires to change the technical specifications contained in Schedule A, Company will promptly notify Developer of such desired changes. Developer will provide to Company a revised estimate of the cost to incorporate such changes into the software.

 b) Developer and Company will each sign a change order that modifies the technical specifications contained in Schedule A and sets forth the new technical specifications prior to Developer beginning any work on the modified technical specifications.

 c) In the event that the new technical specifications modify work already performed by Developer then Developer will be entitled to payment for work already performed and completed.

5. Grant of License.

 a) Developer hereby appoints and grants Company a worldwide, personal, non-transferable (except as otherwise expressly set forth herein), and non-exclusive right and license to use the Software and all portions thereof (the “License”) for both itself and its subsidiaries.

 b) Company acknowledges and agrees that the License granted herein is personal to Company and Company may not grant, sell or otherwise provide to others sublicenses to the Software except that Company may permit subsidiaries of Company to utilize the Software under, and as part of, Company's License.

6. Compensation.

 a) As compensation for development of the Software, Company shall pay Developer <your rate> per hour of actual, demonstrated work by Developer. Developer shall, on a weekly basis, submit to Company an invoice itemizing in reasonable detail the dates on which services were performed, the number of hours spent on such dates and a brief description of the services rendered.

 b) The Company shall pay Developer the amounts due pursuant to submitted invoices within 15 days after such invoices are received by the Company.

 c) In the event that Company disputes an item on an invoice, within 7 days following receipt of the invoice Company will (1) pay Developer for all undisputed items on the invoice; and (2) provide a written description of the reason(s) that Company disputes a portion of such invoice. Company may withhold payment for the disputed item only until the dispute is resolved. Depending on the nature of the dispute, Developer may discontinue work on the Software and extend the project schedule until the dispute is resolved.

 d) As compensation in full for the rights and licenses granted to Company herein, Company shall pay Developer a royalty of $1.00.

 e) During the term of this Agreement, the Developer shall bill and the Company shall reimburse Developer for all reasonable and approved out-of-pocket expenses which are incurred in connection with the performance of the duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Developer in traveling to and from Company facilities shall not be reimbursable.

 f) Company shall pay a late payment charge of 1.5 percent per month or the maximum permitted by applicable law, whichever is less, on all amounts remaining unpaid for a period of 15 days after they become due and payable.

7. Maintenance. Developer shall have no obligation to provide and Company shall have no obligation to purchase any maintenance services following the delivery of the Software.

8. Modifications. In the event that Company requests Developer make modifications to the Software after the delivery and acceptance of the Software and Developer agrees to do so, such modifications will be subject to a separate agreement between the parties and such work will be performed at Developer's then prevailing rates.

9. Restrictions on Sale or Distribution of Software. Company shall not sell, distribute, publish or republish the Software to any person or entity other than Company's subsidiaries.

10. Independent Contractor. Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee partnership or joint venture relationship between the Company and Developer. Developer is an independent contractor and not an employee of the Company or any of its subsidiaries or affiliates. The consideration set forth in Section 6 shall be the sole consideration due Developer for the services rendered hereunder. It is understood that the Company will not withhold any amounts for payment of taxes from the compensation of Developer hereunder. Developer will not represent to be or hold itself out as an employee of the Company and Developer acknowledges that he/she shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to the Company's regular employees. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be Developer's sole responsibility and Developer shall indemnify and hold Company harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments.

11. Confidentiality.

 a) In the course of the performance of the duties of this Agreement, the parties recognize that Developer may come in contact or become familiar with information which the Company or its subsidiaries, affiliates, partners, clients or customers may consider confidential. This information may include, but is not limited to, information pertaining to the Company which information may be of value to a competitor. Developer agrees to keep all such information confidential and not to discuss or divulge it to anyone other than appropriate Company personnel or their designees.

b) Software and all information and documentation relating thereto shall be held in confidence by Company and its subsidiaries and may not be used by either of them except in the furtherance of the purposes of this Agreement nor disclosed to third parties without Developer's prior written consent. Company shall not copy, decompile, disassemble, or attempt in any way to reverse engineer Software. Company shall not remove or modify any copyright or proprietary rights notice included in or on the Software and shall reproduce all such notices on any permissible copies of the Software or portions thereof, in any form, which Company may make.

12. Term.

 a) This Agreement shall commence on the date first above written and shall continue for a period of 1 year, unless earlier terminated by either party hereto. Either party may terminate this Agreement upon 30 days prior written notice.

 b) The term of any rights and licenses granted to Company under patents, copyrights, and other proprietary rights shall be perpetual and shall survive the term of this Agreement.

13. Assignment. This Agreement and any rights or licenses granted to Company hereunder may not be assigned or transferred by Company without Developer's prior written consent.

14. Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure.

15. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when personally delivered or deposited, postage prepaid, in the first class mail of the United States properly addressed to the appropriate party at the address set forth below:

 a) Notices as to Developer:
    Avie, LLC
    <street address>
    <city/state/zip>

 b) Notices as to Company:
    <client company>
    <client company street address>
    <client company city/state/zip>

16. Enforceability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the reminder of the Agreement shall remain in full force and effect and shall in no way be impaired.

17. Miscellaneous.

 a) Entire Agreement and Amendments. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral. No amendment or extension of this Agreement shall be binding unless in writing and signed by both parties.

 b) Binding Effect. This Agreement shall be binding upon the parties hereto, their successors, trustees, and assigns.

 c) Governing Law, Severability. This Agreement shall be governed by the laws of the State of Colorado. The invalidity or unenforceability of any provision of this Agreement or any Exhibit or Schedule shall not affect the validity or enforceability of any other term or provision of this Agreement or any such Exhibit or Schedule.

WHEREFORE, the parties hereto have executed this Agreement by their duly authorized representatives and have caused this Agreement to become effective as of the date first above written.

COMPANY:    <client company>

By:____________________________________

Title:___________________________________

Date:___________________________________

DEVELOPER:    Avie, LLC

By:____________________________________

Title:___________________________________

Date:___________________________________


Schedule A – Technical Specifications
<software name> System Requirements for <client company>
Version 1.0, dated <specification last updated date>

<add technical specifications for the software here>
	## For educational purposes only! Not a substitute for individualized advice from a qualified legal practitioner. ##

	SOFTWARE CONSULTING AGREEMENT

	THIS AGREEMENT is entered into on <contract date> by and between Avie, LLC, (hereinafter "Developer") and <client company>, (hereinafter "Company").

	RECITALS

	WHEREAS, Company wishes to retain Developer to develop certain <software type> software (hereinafter defined and referred to as “Software”); and

	WHEREAS, Developer has agreed to develop Software for the Company according to the terms and conditions contained herein.

	NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the parties hereby agree as follows:

	AGREEMENT

	1. Duties of Developer.

	a) Developer shall develop the Software and perform other tasks as are set forth in technical specifications for the Software contained in Schedule A. The parties estimate that the development time for the Software will total <estimated hours> hours.

	b) Developer will produce and provide to Company appropriate technical and training documentation for the Software.

	2. Warranties and Representations. Developer warrants and represents that:

	a) The Software will meet the technical specifications of Schedule A hereto, and there will be no known errors, malfunctions or defects in the Software or any portion thereof at the time of delivery.

	b) Developer owns or shall own the entire right, title and interest in and to the Software and all proprietary rights therein, or Developer has or will have sufficient rights in and to the Software and all proprietary rights therein to fulfill its obligations under this Agreement.

	c) Developer has the right to enter into this Agreement, to grant to the Company the rights and licenses set forth herein, and to perform all other obligations of this Agreement.

	d) THE SOFTWARE IS TO BE PROVIDED ON AN “AS IS” BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.

	3.Duties of Company.

	a) Upon delivery of the Software by Developer, Company will promptly review and test the Software for compliance with the technical specifications.

	b) Company will notify Developer within 14 days following delivery that Company either accepts or rejects the Software and all deliverables and tasks, but all of the foregoing shall be deemed accepted, if not rejected in writing by Company within 21 days after Developer delivers the Software.

	4. Change Orders.

	a) In the event that Company desires to change the technical specifications contained in Schedule A, Company will promptly notify Developer of such desired changes. Developer will provide to Company a revised estimate of the cost to incorporate such changes into the software.

	b) Developer and Company will each sign a change order that modifies the technical specifications contained in Schedule A and sets forth the new technical specifications prior to Developer beginning any work on the modified technical specifications.

	c) In the event that the new technical specifications modify work already performed by Developer then Developer will be entitled to payment for work already performed and completed.

	5. Grant of License.

	a) Developer hereby appoints and grants Company a worldwide, personal, non-transferable (except as otherwise expressly set forth herein), and non-exclusive right and license to use the Software and all portions thereof (the “License”) for both itself and its subsidiaries.

	b) Company acknowledges and agrees that the License granted herein is personal to Company and Company may not grant, sell or otherwise provide to others sublicenses to the Software except that Company may permit subsidiaries of Company to utilize the Software under, and as part of, Company's License.

	6. Compensation.

	a) As compensation for development of the Software, Company shall pay Developer <your rate> per hour of actual, demonstrated work by Developer. Developer shall, on a weekly basis, submit to Company an invoice itemizing in reasonable detail the dates on which services were performed, the number of hours spent on such dates and a brief description of the services rendered.

	b) The Company shall pay Developer the amounts due pursuant to submitted invoices within 15 days after such invoices are received by the Company.

	c) In the event that Company disputes an item on an invoice, within 7 days following receipt of the invoice Company will (1) pay Developer for all undisputed items on the invoice; and (2) provide a written description of the reason(s) that Company disputes a portion of such invoice. Company may withhold payment for the disputed item only until the dispute is resolved. Depending on the nature of the dispute, Developer may discontinue work on the Software and extend the project schedule until the dispute is resolved.

	d) As compensation in full for the rights and licenses granted to Company herein, Company shall pay Developer a royalty of $1.00.

	e) During the term of this Agreement, the Developer shall bill and the Company shall reimburse Developer for all reasonable and approved out-of-pocket expenses which are incurred in connection with the performance of the duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Developer in traveling to and from Company facilities shall not be reimbursable.

	f) Company shall pay a late payment charge of 1.5 percent per month or the maximum permitted by applicable law, whichever is less, on all amounts remaining unpaid for a period of 15 days after they become due and payable.

	7. Maintenance. Developer shall have no obligation to provide and Company shall have no obligation to purchase any maintenance services following the delivery of the Software.

	8. Modifications. In the event that Company requests Developer make modifications to the Software after the delivery and acceptance of the Software and Developer agrees to do so, such modifications will be subject to a separate agreement between the parties and such work will be performed at Developer's then prevailing rates.

	9. Restrictions on Sale or Distribution of Software. Company shall not sell, distribute, publish or republish the Software to any person or entity other than Company's subsidiaries.

	10. Independent Contractor. Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee partnership or joint venture relationship between the Company and Developer. Developer is an independent contractor and not an employee of the Company or any of its subsidiaries or affiliates. The consideration set forth in Section 6 shall be the sole consideration due Developer for the services rendered hereunder. It is understood that the Company will not withhold any amounts for payment of taxes from the compensation of Developer hereunder. Developer will not represent to be or hold itself out as an employee of the Company and Developer acknowledges that he/she shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to the Company's regular employees. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be Developer's sole responsibility and Developer shall indemnify and hold Company harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments.

	11. Confidentiality.

	a) In the course of the performance of the duties of this Agreement, the parties recognize that Developer may come in contact or become familiar with information which the Company or its subsidiaries, affiliates, partners, clients or customers may consider confidential. This information may include, but is not limited to, information pertaining to the Company which information may be of value to a competitor. Developer agrees to keep all such information confidential and not to discuss or divulge it to anyone other than appropriate Company personnel or their designees.

	b) Software and all information and documentation relating thereto shall be held in confidence by Company and its subsidiaries and may not be used by either of them except in the furtherance of the purposes of this Agreement nor disclosed to third parties without Developer's prior written consent. Company shall not copy, decompile, disassemble, or attempt in any way to reverse engineer Software. Company shall not remove or modify any copyright or proprietary rights notice included in or on the Software and shall reproduce all such notices on any permissible copies of the Software or portions thereof, in any form, which Company may make.

	12. Term.

	a) This Agreement shall commence on the date first above written and shall continue for a period of 1 year, unless earlier terminated by either party hereto. Either party may terminate this Agreement upon 30 days prior written notice.

	b) The term of any rights and licenses granted to Company under patents, copyrights, and other proprietary rights shall be perpetual and shall survive the term of this Agreement.

	13. Assignment. This Agreement and any rights or licenses granted to Company hereunder may not be assigned or transferred by Company without Developer's prior written consent.

	14. Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure.

	15. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when personally delivered or deposited, postage prepaid, in the first class mail of the United States properly addressed to the appropriate party at the address set forth below:

	a) Notices as to Developer:
	Avie, LLC
	<street address>
	<city/state/zip>

	b) Notices as to Company:
	<client company>
	<client company street address>
	<client company city/state/zip>

	16. Enforceability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the reminder of the Agreement shall remain in full force and effect and shall in no way be impaired.

	17. Miscellaneous.

	a) Entire Agreement and Amendments. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral. No amendment or extension of this Agreement shall be binding unless in writing and signed by both parties.

	b) Binding Effect. This Agreement shall be binding upon the parties hereto, their successors, trustees, and assigns.

	c) Governing Law, Severability. This Agreement shall be governed by the laws of the State of Colorado. The invalidity or unenforceability of any provision of this Agreement or any Exhibit or Schedule shall not affect the validity or enforceability of any other term or provision of this Agreement or any such Exhibit or Schedule.

	WHEREFORE, the parties hereto have executed this Agreement by their duly authorized representatives and have caused this Agreement to become effective as of the date first above written.

	COMPANY: <client company>

	By:____________________________________

	Title:___________________________________

	Date:___________________________________

	DEVELOPER: Avie, LLC

	By:____________________________________

	Title:___________________________________

	Date:___________________________________



	Schedule A – Technical Specifications
	<software name> System Requirements for <client company>
	Version 1.0, dated <specification last updated date>

	<add technical specifications for the software here>