Software development agreement

DATE

[Date]
PARTIES

1.

2.

AGREEMENT

1. Definitions

1.1 In this Agreement, except to the extent expressly provided otherwise:

"Agreement" means this agreement including any Schedules, and any

amendments to this Agreement from time to time;

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"Assignment IP" means all Intellectual Property Rights in the Software
and the Documentation, excluding the Intellectual Property Rights in the
Third Party Materials;

"Business Day" means any weekday other than a bank or public holiday in
India;

"Business Hours" means the hours of [09:00 to 17:00 IST] on a Business

Day;

"Charges" means the following amounts:

(a) the amounts specified in Paragraph 4 of Schedule 1 (Software

Development Particulars);

(b) such amounts as may be agreed in writing by the parties from time
to time; and

(c) amounts calculated by multiplying the Developers’ standard time-

based charging rates (as notified by the Developer to the Promoters

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 before the date of this Agreement) by the time spent by the
Developer's personnel performing the Services (rounded down by
the Developer to the nearest quarter hour);

"Development Services" means the design and development of the

Software by the Developers;

"Documentation" means the documentation for the Software produced

by the Developers and delivered or made available by the Developer to
the Promoters;

"Effective Date" means the date of execution of this Agreement;

"Force Majeure Event" means an event, or a series of related events, that

is outside the reasonable control of the party affected (including failures
of the internet or any public telecommunications network, hacker attacks,
denial of service attacks, virus or other malicious software attacks or
infections, power failures, industrial disputes affecting any third party,
changes to the law, disasters, explosions, fires, floods, riots, terrorist

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attacks and wars);

"Intellectual Property Rights" means all intellectual property rights

wherever in the world, whether registrable or unregistrable, registered or
unregistered, including any application or right of application for such
rights (and these "intellectual property rights" include copyright and
related rights, database rights, confidential information, trade secrets,
know-how, business names, trade names, trade marks, service marks,
passing off rights, unfair competition rights, patents, petty patents, utility
models, semi-conductor topography rights and rights in designs);

"Schedule" means any schedule attached to the main body of this

Agreement;

"Services" means any services that the Developers provides to the

Promoters, or has an obligation to provide to the Promoters, under this
Agreement;

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 "Software" means the software identified in Paragraph 1 of Schedule 1
(Software Development Particulars), including the Source Code of that
software created by or on behalf of the Developers in the course of the
provision of the Development Services and compiled to create the
executable version of that software;

"Software Defect" means a defect, error or bug in the Software having an

adverse effect OR a material adverse effect on the appearance, operation,
functionality or performance of the Software, but excluding any defect,
error or bug caused by or arising as a result of:

(a) any act or omission of the Promoters or any person authorized by

the Promoters to use the Software;

(b) any use of the Software contrary to the Documentation by the

Promoters or any person authorized by the Promoters to use the
Software;

(c) a failure of the Promoters to perform or observe any of its

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(d)
obligations in this Agreement; and/or

an incompatibility between the Software and any other system,

network, application, program, hardware or software not specified
as compatible in the Software Specification;

"Software Specification" means the specification for the Software set out
in Paragraph 1 of Schedule 1 (Software Development Particulars) and in
the Documentation, as it may be varied by the written agreement of the
parties from time to time;

"Source Code" means software code in human-readable form, including

human-readable code compiled to create software or decompiled from
software, but excluding interpreted code;

"Third Party Materials" means the works and/or materials comprised in

the Software, the Intellectual Property Rights in which are owned by a
third party, and which are specified in Paragraph 2 of Schedule 1

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 (Software Development Particulars) or which the parties agree in writing
shall be incorporated into the Software.

2. Term

2.1 This Agreement shall come into force upon the Effective Date.

2.2 This Agreement shall continue in force indefinitely

3. Development and Maintenance Services

3.1 The Developers shall provide the Development and Maintenance Services
to the Promoters.

3.2 The Developers shall ensure that the Development Services are provided
in accordance with the timetable set out in Paragraph 3 of Schedule 1
(Software Development Particulars), and that a copy of the Software and

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Documentation is delivered to the Promoters by means of a secure online
file sharing system, on a USB memory stick or on optical disk in
accordance with that timetable.

3.3 The Promoters acknowledges that a delay in the Promoters performing its
obligations under this Agreement may result in a delay in the
performance of the Development Services; and subject to Clause 11.1 the
Developers will not be liable to the Promoters in respect of any failure to
meet the Development Services timetable to the extent that that failure
arises out of a delay in the Promoters performing its obligations under this
Agreement.

3.4 The Developers shall ensure that the Source Code, and any interpreted
code, comprised in the Software created by or on behalf of the
Developers during the provision of the Development Services is written to
a professional standard, conforms with any coding standards document
agreed between the parties, and incorporates sufficient commentary to

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 enable a competent third party developer to understand, adapt, maintain
and update the code.

3.5 The Developers shall keep the Promoters reasonably informed of the
progress of the Development Services and, in particular, shall inform the
Promoters of any substantial obstacles or likely delays in the performance
of the Development Services.

3.6 The Developers shall during the course of the Development Services at
the request of the Promoters supply to the Promoters make accessible to
the Promoters a current development version of the Software for the
purposes of enabling the Promoters to assess the progress of the
Development Services and provide feedback to the Developers regarding
the Software.

3.7 The Developers should ensure that they will host the application and the
software works fine.

4. Developers’ Duties and Responsibilities

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Developers and Promoters will jointly define the specification and
Developers will:

4.1 Perform the work in accordance with the specifications;

4.2 Use reasonable efforts to deliver the Software to Promoters by the

delivery deadline setout in the time schedule described in Annexure A or
as soon as commercially practicable in accordance with the specification;

4.3 Developers shall be responsible for delivering and performing only those
professional services specifically identified in Annexure A.

4.4 Developers should manage, maintain, and host the Software till the
promoters wish to continue.

4.5 Developers should do all the promotion work, advertisement, and

Software Launching activities.

4.6 The Developers should not provide similar software to any third parties.

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 5. Customer obligations

5.1 Save to the extent that the parties have agreed otherwise in writing, the
Promoters must provide to the Developers, or procure for the Developers,
such:

(a) co-operation, support and advice; and

(b) information and documentation,

as are reasonably necessary to enable the Developers to perform its

obligations under this Agreement.

6. Third Party Materials

6.1 Subject to any express written agreement between the parties, the
Developer shall ensure that the Third Party Materials are:

(a) [licensed to the Customer in accordance with the relevant licensor's

standard licensing terms (which the Customer acknowledges may be
open source or Creative Commons licensing terms)];

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(b) [licensed to the Customer on reasonable terms notified by the
Developer to the Customer];

(c) [sub-licensed by the Developer to the Customer on reasonable terms

notified in writing by the Developer to the Customer]; or

(d) [sub-licensed by the Developer to the Customer on the basis of a

non-exclusive, worldwide, perpetual and irrevocable license to use
the Third Party Materials in connection with the Software].

7. Charges

7.1 The Promoters had already given Rs. 2,00,000/- (Rupees Two Lakhs Only)
to the Developers on xx/xx/xxxx through a cheque ( Details of the Cheque)
/ Cash in advance towards the Software Development Cost, Launch
Process and Registration.

7.2 The Promoters will share 25% of the Net Profit from the revenue out of
this Software towards the maintenance cost and updates. The Developers

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 cannot claim any extra amount for Software maintenance and updates in
the future.

8. Warranties

8.1 The Developers warrants to the Promoters that:

(a) the Developers has the legal right and authority to enter into this
Agreement and to perform its obligations under this Agreement;

(b) the Developers will comply with all applicable legal and regulatory
requirements applying to the exercise of the Developers’ rights and
the fulfilment of the Developers’ obligations under this Agreement;
and

(c) the Developers has or has access to all necessary know-how,

expertise and experience to perform its obligations under this
Agreement.

8.2 The Developers warrants to the Promoters that:

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(a) the Software as provided will conform in all material respects with
the Software Specification;

(b) the Software will be supplied free from Software Defects and will
remain free from Software Defects;

(c) the Software will be supplied free from viruses, worms, Trojan
horses, ransomware, spyware, adware and other malicious software
programs; and

(d) the Software shall incorporate security features reflecting the

requirements of good industry practice.

8.3 The Developers warrants to the Promoters that the Software and
Documentation, when used by the Promoters in accordance with this
Agreement, will not breach any laws, statutes or regulations applicable
under Indian law.

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 8.4 The Developers warrants to the Promoters that the Software and
Documentation, when used by the Promoters in accordance with this
Agreement, will not infringe the Intellectual Property Rights of any person
in any jurisdiction and under any applicable law.

8.5 If the Developers reasonably determines, or any third party alleges, that
the use of the Software by the Promoters in accordance with this
Agreement infringes any person's Intellectual Property Rights, the
Developers may acting reasonably at its own cost and expense:

(a) modify the Software in such a way that it no longer infringes the
relevant Intellectual Property Rights, providing that any such
modification must not introduce any Software Defects into the
Software and must not result in the Software failing to conform with
the Software Specification; or

(b) procure for the Promoters the right to use the Software in
accordance with this Agreement.

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8.6 The Promoters warrants to the Developers that it has the legal right and
authority to enter into this Agreement and to perform its obligations
under this Agreement.

8.7 All of the parties' warranties and representations in respect of the subject
matter of this Agreement are expressly set out in this Agreement. To the
maximum extent permitted by applicable law, no other warranties or
representations concerning the subject matter of this Agreement will be
implied into this Agreement or any related contract.

9. Limitations and exclusions of liability

9.1 Nothing in this Agreement will:

(a) limit or exclude any liability for death or personal injury resulting
from negligence;

(b) limit or exclude any liability for fraud or fraudulent

misrepresentation;

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 (c) limit any liabilities in any way that is not permitted under applicable
law; or

(d) exclude any liabilities that may not be excluded under applicable
law.

9.2 The limitations and exclusions of liability set out in this Clause 9 and
elsewhere in this Agreement:

(a) are subject to Clause 9.1; and

(b) govern all liabilities arising under this Agreement or relating to the
subject matter of this Agreement, including liabilities arising in
contract, in tort (including negligence) and for breach of statutory
duty, except to the extent expressly provided otherwise in this
Agreement.

9.3 Neither party shall be liable to the other party in respect of any losses
arising out of a Force Majeure Event.

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9.4 Neither party shall be liable to the other party in respect of any loss of
profits or anticipated savings.

9.5 Neither party shall be liable to the other party in respect of any loss of
business, contracts or opportunities.

9.6 Neither party shall be liable to the other party in respect of any loss or
corruption of any data or database.

9.7 Neither party shall be liable to the other party in respect of any special,
indirect or sequential loss or damage.

9.8 The aggregate liability of [each party to the other party under this
Agreement shall not exceed the greater of:

(a) [amount]; and

(b) the total amount paid and payable by the Customer to the
Developer under this Agreement.

10. Intellectual Property Rights

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 10.1 The Parties acknowledge and agree that the Promoters will hold all
intellectual property rights in the Software including, but not limited to
copyright and trademark rights. The Developers agrees to not claim any
such ownership in the Software's intellectual property at any time prior to
or after the completion and delivery of the software to the Promoters.

11. Force Majeure Event

11.1 If a Force Majeure Event gives rise to a failure or delay in either party
performing any obligation under this Agreement[ (other than any
obligation to make a payment)], that obligation will be suspended for the
duration of the Force Majeure Event.

11.2 A party that becomes aware of a Force Majeure Event which gives rise to,
or which is likely to give rise to, any failure or delay in that party
performing any obligation under this Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such

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failure or delay will continue.

11.3 A party whose performance of its obligations under this Agreement is

affected by a Force Majeure Event must take reasonable steps to mitigate
the effects of the Force Majeure Event.

12. Termination

12.1 The Developer may terminate this Agreement by giving to the Customer
not less than 30 days' written notice of termination.

12.2 The Customer may terminate this Agreement by giving to the Developer
not less than 30 days' written notice of termination.

12.3 If the Developers wish to terminate this Agreement, they should appoint a
new team of Developers to maintain and update the software and to
arrange all support to carry on the business of the Promoters.
Appointment of the new Developers will be done at the mutual consent of
Promoters and Developers.

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 13. Effects of termination

13.1 Upon the termination of this Agreement, all of the provisions of this
Agreement shall cease to have effect, save that the following provisions of
this Agreement shall survive and continue to have effect (in accordance
with their express terms or otherwise indefinitely): [Clauses 1, 9, 13, 14,
16 and 17].

13.2 Except to the extent that this Agreement expressly provides otherwise,
the termination of this Agreement shall not affect the accrued rights of
either party.

14. Further assurance

14.1 The Developers must use reasonable endeavors to:

(a) do or procure the doing of all acts; and

(b) execute or procure the execution of all documents,

that the Promoters may reasonably request from time to time in order to

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perfect or confirm the Promoters’ ownership of the rights assigned by this
Agreement.

14.2 The Developers must provide to the Promoters at the cost and expense of
the Promoters such reasonable assistance as the Promoters may request
in order to register the Promoters’ rights in the Assignment IP with any
intellectual property office or registry.

14.3 The Developers must provide to the Promoters at the cost and expense of
the Promoters all reasonable assistance in connection with any legal
proceedings relating to the rights assigned under this Agreement that are
brought by, or against, the Promoters.

15. Notices

15.1 Any notice from one party to the other party under this Agreement must
be given by one of the following methods (using the relevant contact
details set out in Clause 15.2):

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 (a) delivered personally or sent by courier or through post, in which
case the notice shall be deemed to be received upon delivery;

providing that, if the stated time of deemed receipt is not within Business
Hours, then the time of deemed receipt shall be when Business Hours
next begin after the stated time.

15.2 The parties' contact details for notices under this Clause 15 are as follows:

(a) in the case of notices sent by the Customer to the Developers,

[contact details]; and

(b) in the case of notices sent by the Developer to the Promoters,

[contact details].

15.3 The addressee and contact details set out in Clause 15.2 may be updated
from time to time by a party giving written notice of the update to the
other party in accordance with this Clause 15.

16. General

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16.1 No breach of any provision of this Agreement shall be waived except with
the express written consent of the party not in breach.

16.2 If any provision of this Agreement is determined by any court or other

competent authority to be unlawful and/or unenforceable, the other
provisions of this Agreement will continue in effect. If any unlawful and/or
unenforceable provision would be lawful or enforceable if part of it were
deleted, that part will be deemed to be deleted, and the rest of the
provision will continue in effect (unless that would contradict the clear
intention of the parties, in which case the entirety of the relevant
provision will be deemed to be deleted).

16.3 This Agreement may not be varied except by a written document signed
by or on behalf of each of the parties.

16.4 Neither party may without the prior written consent of the other party
assign, transfer, charge, license or otherwise deal in or dispose of any
contractual rights or obligations under this Agreement.

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 16.5 This Agreement is made for the benefit of the parties, and is not intended
to benefit any third party or be enforceable by any third party. The rights
of the parties to terminate, rescind, or agree any amendment, waiver,
variation or settlement under or relating to this Agreement are not
subject to the consent of any third party.

16.6 Subject to Clause 9.1, this Agreement shall constitute the entire
agreement between the parties in relation to the subject matter of this
Agreement, and shall supersede all previous agreements, arrangements
and understandings between the parties in respect of that subject matter.

16.7 This Agreement shall be governed by and construed in accordance with

Indian law.

16.8 The courts of Kozhikode shall have exclusive jurisdiction to adjudicate any
dispute arising under or in connection with this Agreement.

17. Interpretation

17.1 In this Agreement, a reference to a statute or statutory provision includes

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a reference to:

(a) that statute or statutory provision as modified, consolidated and/or

re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory

provision.

17.2 The Clause headings do not affect the interpretation of this Agreement.

17.3 References in this Agreement to "calendar months" are to the 12 named

periods (January, February and so on) into which a year is divided.

17.4 In this Agreement, general words shall not be given a restrictive

interpretation by reason of being preceded or followed by words
indicating a particular class of acts, matters or things.

EXECUTION

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 The parties have indicated their acceptance of this Agreement by executing it
below.
SIGNED BY
.......................
SIGNED BY
........................................

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 SCHEDULE 1 (SOFTWARE DEVELOPMENT PARTICULARS)

1. Specification of Software

[Specify Software]
2. Third Party Materials

[Identify Third Party Materials]

3. Timetable

[Insert timetable]
4. Financial provisions

[Insert financial provisions]

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