Software development and distribution agreement.
This Agreement is made this _________ day of
_________, _________[year], by and between _________[name]
("Owner") and _________[name] ("Programmer").
In consideration of the premises and of the mutual
covenants and agreements contained in this Agreement, the parties agree as
Owner owns the computer equipment which is listed in Exhibit "A."
Programmer is a computer programmer, experienced in the operation and use of
computer programming on the equipment described and identified in Exhibit
parties wish to develop a software applications package to be run on the
equipment for use in business establishments.
parties have services, monies, knowledge, expertise, and equipment that is necessary
to combine their efforts to develop a useful software program for businesses
and, therefore, the parties agree to the following terms:
1.01. The term "business establishment"
includes, but is not limited to, any prospective customer of the parties'
program subject to this Agreement who leases or purchases either the software
or hardware necessary to maintain a computer program for use in a retail
business for the purpose of keeping inventory, cost control, expenses,
accounts receivable, or other data base management information that may be
the subject of the software program contemplated by the parties.
1.02. "Software" means the computer
applications program that is to be written by the parties and eventually
sold, licensed, or leased to prospective business establishments.
1.03. "Hardware" means any and all
computer equipment, including, but not limited to, the equipment described in
Exhibit "A" that is necessary to produce, market, sell, or use the
computer software which is the subject of this Agreement.
II. SCOPE OF AGREEMENT AND LIMITATIONS
2.01. The purpose of this Agreement is to allow the
parties to combine their resources and talents to produce a business software
application program for business establishments. It is contemplated in this
Agreement that both parties shall contribute the time, money, services and
equipment that may be necessary to produce the program, as detailed below.
2.02. Neither party has authority for and on behalf
of the other except as provided for in this Agreement. No other authority,
power, partnership, use, or rights are granted or implied.
2.03. Neither party may make, revise, alter, or
otherwise diverge from the terms, conditions, or policies which are subject
to this Agreement without a written amendment to this Agreement.
2.04. Neither party may incur any debt, obligation,
expense, or liability of any kind against the other without the other's
express written approval.
2.05. All funds collected by either party or a
party's agents or employees for the sale of the products covered under this
Agreement shall be placed in an escrow account. After the deduction of
expenses as contemplated in this Agreement, the monies shall be distributed
in accordance with the parties' agreement as detailed below. Neither party
shall withhold any funds from the other in the event of a dispute, offset,
counter-claim or other grievance.
2.06. Both parties agree to comply with all local,
state, and federal laws and regulations applicable to the transactions contemplated
in this Agreement.
2.07. Both parties expressly recognize that they are
not responsible or liable for any misrepresentations, errors, omissions of
any kind, negligence, carelessness, or other problems or disputes which
through the fault of the other party may arise during the terms of this
Agreement. Accordingly, in the event such a dispute or otherwise arises, the
party through whose error or omission the dispute arose agrees to indemnify
the other party and pay for any and all costs of defending the action that
may arise as a result of the dispute, including, but not limited to,
2.08. Both parties agree to maintain records and
insurance applicable to the business subject to this Agreement.
III. TERMS OF THE AGREEMENT
3.01. The term of this Agreement shall be _________
years from the date this instrument is signed by all of the parties.
3.02. If, after the term of the Agreement has
expired, the parties continue to do business together as if this Agreement
were still in effect, the Agreement shall be renewed and shall continue in
effect until one of the parties notifies the other in writing of the
termination of this Agreement. Any such termination letter must give 30 days'
notice to the other party.
3.03. Termination may be by agreement, on 30 days'
written notice pursuant to provision 3.02 above, or may occur immediately
upon the breach of this Agreement by one of the parties. A breach of this
Agreement includes, but is not limited to, a violation of the policies and
rules by one of the parties, breach of the noncompetition clause of this
Agreement, the making of a misrepresentation or false statement by one of the
parties, nonperformance of the party's duties, death of a party, or the
occurrence of a conflict of interest between the parties.
3.04. Duties. Owner agrees to supply to Programmer
any and all necessary equipment or hardware required to develop the software
program contemplated under this Agreement, including, but not limited to, the
equipment listed in Exhibit "A."
Once the software program is developed, Owner agrees
to market and sell the program to prospective businesses. Owner is given the
right to market the product in the geographic territory and by the method and
manner that Owner sees fit. It is anticipated that Owner will sell the
product for $_____; however, Owner has the right to adjust the price of the
program and hardware to be competitive with current market conditions.
Programmer will write and prepare the software
program and any and all support and/or training materials necessary to market
the program, and will be available for consultation to explain the operation
and use of the program to Owner and prospective customers. Programmer will be
available for a demonstration of the program and will answer technical or
usage questions applicable to the software program. Programmer will be
responsible for providing and writing any and all updates, changes, or
modifications to the software program if the same becomes necessary.
Each party agrees to devote the party's full time,
energy and attention to the duties specified in this Agreement in order to
complete the program in a reasonably efficient and expeditious time period.
Each party agrees to provide prompt, courteous and professional efforts to
promote the sale of the software program once the program has been developed.
Each party agrees to refrain from doing any act that
would hurt, prejudice or impair the sale or development of the software
program subject to this Agreement.
4.01. Owner agrees to market and sell the program at
the market price that in Owner's determination would produce the most income
for the parties. All monies received from the sale of the business software
package will be placed into the operating account in the name of _________[specify
one or both parties]. All necessary expenses directly attributable to the
marketing, sale, production, and distribution of the software package will be
deducted from the operating account. Net profits, after the initial
distribution, will be distributed to the parties. Distributions will be made
quarterly and will be paid in equal shares to Owner and Programmer.
4.02. Owner agrees to pay to Programmer Programmer's
share of the distribution _________[number] days following the
expiration of the quarter in which the monies are owed. Prior to the
distribution, the parties will agree between themselves as to how much money
should remain in the operating account for recovery, operating expenses, and
the like after distribution.
4.03. The initial distribution of the profits will
be as follows: Programmer will keep a record of all hours spent in developing
the program, as if Programmer were doing this project for a billable client,
up to a maximum of _________[number] hours. Programmer will then be
reimbursed from net profits; Owner will then be reimbursed for Owner's total
cost of equipment and monies expended on the program as documented by
receipts. Finally, remaining profits will be split equally.
V. NONCOMPETITION PROVISIONS
5.01. The parties agree that the covenants,
agreements and restrictions ("this covenant") contained in this
agreement are necessary to protect the business goodwill, business interests
and proprietary rights of _________[name] and that the parties have
independently discussed, reviewed and had the opportunity of legal counsel to
consider this agreement and now agree and stipulate to the following:
covenant is an integral part of an enforceable agreement, _________[an
employment agreement], and the covenants contained in this agreement were
made at the time this agreement was consummated by the parties.
covenant is fair and reasonable in its:
1 geographical area;
2 length of time; and
3 scope of activity being restrained.
5.02. The parties expressly agree that while this
Agreement is in effect, and for a period of two years following termination
of this Agreement, Programmer will neither directly nor indirectly as an
employee, agent, proprietor, partner, broker, stockbroker, stockholder,
officer, director, or otherwise use special knowledge, training, or divulge
trade secrets to any person or to any competitive business that would compete
directly or indirectly with Owner's business without prior consent of Owner.
The agreements contained in this section shall be
construed as agreements independent of any other provisions of this
Agreement, and the existence of any claim or cause of action of one of the
parties against the other, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the parties of the
agreements contained in this section.
5.03. Neither party shall, for a period of _________[number]
years immediately following the termination of this Agreement, regardless of
the party causing the termination of this Agreement, either directly or
indirectly make known to any person, firm, or corporation the names and
addresses of any of the customers subject to this Agreement or call on,
solicit, or take away, or attempt to call on, solicit, or take away any of
the customers of the parties of this Agreement.
VI. GENERAL AND ADMINISTRATIVE
6.01. Parties Bound. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective heirs,
executors, administrators, legal representatives, successors, and assigns.
6.02. Assignment. Neither party shall have the right
to transfer or assign their interests in this Agreement without the prior
written consent of the other party.
6.03. Corporate Authority. If any party is a legal
entity (partnership, corporation and/or trust), that party represents to the
other that this Agreement, the transaction contemplated in this Agreement,
and the execution and delivery of this Agreement, have been duly authorized
by all necessary partnership, corporate, or trust proceedings and actions,
including, without limitation, action on the part of the directors, if the
party is a corporation. Certified copies of any corporate or other
resolutions authorizing this transaction shall be delivered at execution.
6.04. Time Limits. Time is of the essence in this
Agreement. All time limits shall be strictly construed and rigidly enforced.
6.05. No Waiver. A failure or delay in the
enforcement of the rights detailed in this Agreement by either party shall
not constitute a waiver of rights or be deemed a basis for estoppel. The
parties may exercise their rights under this Agreement despite delay or
failure to enforce those rights.
6.06. Dispute or Contest. In the event that a
dispute occurs or an action in law or equity arises out of the operation,
construction, or interpretation of this Agreement, the losing party shall
bear the expense of attorney's fees and costs incurred by the prevailing
party in the action.
6.07. Paragraph Headings. The paragraph headings
used in this Agreement are descriptive only and shall have no legal force or
6.08. Use of Pronouns. The use of the neuter
singular pronoun to refer to any party described in this Agreement shall be
deemed a proper reference even though the party may be an individual, a
partnership, a corporation, or a group of two or more individuals,
partnerships or corporations. The grammatical changes required to make the
provisions of the Agreement applicable to groups of individuals,
corporations, partnerships, males or females shall, in all instances, be
assumed as though in each case fully expressed.
6.09. Governing Law. This Agreement shall be subject
to and governed by the laws of the State of _________[state]. Any and
all obligations or payments are due and payable in _________ County, _________[state].
6.10. Severability. If any provision of this
Agreement shall, for any reason, be held violative of any applicable law, and
so much of the Agreement is held to be unenforceable, then the invalidity of
the specific provision in this Agreement shall not be deemed to invalidate
any other provisions, which other provisions shall remain in full force and
effect unless removal of the invalid provision destroys the legitimate
purposes of this Agreement, in which case this Agreement shall be canceled.
6.11. Entire Agreement. This Agreement represents
the entire agreement by and between the parties except as otherwise provided
in this Agreement, and it may not be changed except by written amendment duly
executed by all parties.
SIGNED, accepted, and agreed to this _________ day
of _________, _________[year], by the undersigned parties, who
acknowledge that they have read and understood this Agreement and its
attachments. The undersigned parties execute this legal document voluntarily and
of their own free will.
of _________[Name of County]
This instrument was acknowledged before me on
_________[date] by _________[Name of person giving the acknowledgment].
Notary Public's Signature:
[Notary's typed or printed name]
NOTARY PUBLIC FOR THE STATE OF ______[STATE]
My commission expires: _________
[or Notary's Stamp]