Software development agreement

Under this software development agreement, the developer agrees to create software on behalf of the customer, and to assign (ie transfer) some or all of the rights in that software to the customer. The agreement allows for the incorporation of third party materials into the software, and the premium version also includes licensing provisions relating to framework software used by the developer.

Basic agreement

The basic version of this agreement contains all those terms and conditions you might expect to find in any software development contract, but few bells and whistles. The core clauses cover the manner in which the development services will be provided, the transfer of intellectual property rights, licensing of rights in third party works, charges, payment terms and software-specific warranties. Standard short-form boilerplate clauses are also included.

Standard agreement

The standard version of the agreement includes everything in the basic version, plus provisions covering the following matters:

• set-up services;
• developer access to the customer's computers/networks;
• acceptance testing of the software by the customer;
• the protection of confidential information disclosed by the parties;
• indemnity protection, for one or both parties;
• time recording;
• recovery of the developer's travel etc expenses; and
• special acknowledgements relating to bugs, security, compatibility and legality.

The standard document also includes much more detailed and flexible boilerplate provisions.

Premium agreement

Again, the premium agreement contains all the terms and conditions that are in the standard agreement, with the following additions:

• a short clause dealing with ongoing (ie post-delivery/acceptance) development services;
• provision for customer-supplied materials to be incorporated into the software;
• licensing provisions for framework software owned and used by the developer;
• a formal change control procedure;
• detailed data protection provisions;
• a software escrow clause;
• clauses covering project management and party representatives;
• publicity rights and restrictions;
• a clause prohibiting the soliciting of personnel; and
• export law restrictions.

Basic software development agreement

1. Definitions
2. Term
3. Development Services
4. Assignment
5. Third Party Materials
6. Customer obligations
7. Charges
8. Payments
9. Warranties
10. Limitations and exclusions of liability
11. Force Majeure Event
12. Termination
13. Effects of termination
14. Further assurance
15. Notices
16. Subcontracting
17. General
18. Interpretation

Schedule 1 - Software development particulars

Standard software development agreement

1. Definitions
2. Term
3. Development Services
4. Set Up Services
5. Acceptance procedure
6. Assignment
7. Third Party Materials
8. Customer obligations
9. Charges
10. Expenses
11. Timesheets
12. Payments
13. Developer's confidentiality obligations
14. Customer's confidentiality obligations
15. Warranties
16. Acknowledgements and warranty limitations
17. Indemnities
18. Limitations and exclusions of liability
19. Force Majeure Event
20. Termination
21. Effects of termination
22. Further assurance
23. Notices
24. Subcontracting
25. Assignment
26. No waivers
27. Severability
28. Third party rights
29. Variation
30. Entire agreement
31. Law and jurisdiction
32. Interpretation

Schedule 1 - Software development particulars

Premium software development agreement

1. Definitions
2. Term
3. Development Services
4. Set Up Services
5. Acceptance procedure
6. Assignment
7. Framework Software
8. Source Code of Framework Software
9. Escrow of Source Code of Framework Software
10. Third Party Materials
11. Additional Development Services
12. Customer obligations
13. Customer Materials
14. Representatives
15. Management
16. Change control
17. Charges
18. Expenses
19. Timesheets
20. Payments
21. Developer's confidentiality obligations
22. Customer's confidentiality obligations
23. Publicity
24. Data protection
25. Warranties
26. Acknowledgements and warranty limitations
27. Indemnities
28. Limitations and exclusions of liability
29. Force Majeure Event
30. Termination
31. Effects of termination
32. Non-solicitation of personnel
33. Notices
34. Further assurance
35. Subcontracting
36. Assignment
37. No waivers
38. Severability
39. Third party rights
40. Variation
41. Entire agreement
42. Export control
43. Law and jurisdiction
44. Interpretation

Schedule 1 - Software development particulars
Schedule 2 - Form of change control notice
Schedule 3 - Form of escrow agreement

Is the developer's pricing information protected under this software developer agreement?

It can be treated as confidential information in the standard and premium templates.

When does this software development agreement come into force? Can it be easily backdated?

It comes into force on the "Effective Date", which is defined as the date of execution of the agreement. However this can easily be changed so that the Effective Date pre-dates execution. If you plan to do this, you should check that the other provisions of the agreement make sense in your particular context.

The agreement includes a force majeure clause. This provides that obligations are suspended for the duration of a force majeure event. A force majeure event is defined as an event or serious of events outside the control of the affected party. Examples of force majeure events might include third party industrial disputes, terrorist attacks and environmental disasters. Where a developer's performance is affected by such an event, the developer may be placed under a duty to keep the customer informed, and also to take steps to mitigate the effects of the event. In addition, there is an express exclusion of liabilities arising out of a force majeure event.

How does the change control procedure in the premium agreement work?

Either party may request a change to the terms of the agreement or the specification of the software at any time, although in practice it is the customer that will usually make such requests. The requesting party must send a change control notice to the other party, outlining the impact of the change on the timetable under the contract, details of any additional resources that may be required, and details of any consequential variations of contract. The other party has a fixed period to consider such request. Before the end of that period, the other party should either accept or reject the notice, or request additional information, or propose changes to the notice. One obvious variation that may be needed in the case of requests from the customer is a change to the charges.

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A copy of this software development agreement is included in the following pack:

• Software developer pack (all versions of this document are included in the premium version of the pack and the basic and standard versions of this document are included in the standard version of the pack)