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Before entering into any sort of assignments and projects, it is always
better to ink an agreement in the interest of both parties, so that
future hassles and diatribes could be avoided. The software development
agreement and the software development contract which are nothing
but detailed memorandum of understanding and non-disclosure agreement
combined, put every conditions and detail in writing so that no room
is left for any ambiguity or hidden conditions. These agreements are
essential for the smooth running of the web development project and
saves time by avoiding protracted correspondence and possible litigations.
Excellone has a well-drafted software development agreement as
well as software development contract for the benefit of its clients,
spelling out all the terms and conditions that are mutually agreed
upon, leaving no presumptions and assumptions which could be interpreted
in any other way.
AGREEMENT
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| This Agreement [the "AGREEMENT"] is entered into
by and between having its principal place of business at..,
and Excellone Technologies having its principal place of business
at Sydney, Australia. |
| The effective date of this agreement shall be
the date corresponding to the signature last executed below
[the "Effective Date"]. and Excellone Technologies are hereinafter
collectively referred to as the Parties and each individually
as a Party to this AGREEMENT. |
RECITALS
|
| WHEREAS Excellone Technologies has developed and
provides state-of-the-art software tools and services to a global
audience |
| WHEREAS,. want to <>. |
| WHEREAS Excellone Technologies and desire to enter
into this agreement for the development of << Fill the requirement
details here >>>. |
| NOW, THEREFORE, in consideration of the mutual
representations and covenants set forth herein and for other
good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Excellone.com .au and. hereby
agree as follows: |
- THE WEBSITE Functionality
Upon the Effective Date, Excellone will promptly develop
and put into operation of the changes for.
- Design & Programming: is designed and software
programmed by Excellone in close collaboration with,..
subject to the approval of the said design/software program
by.
- Hosting & Operation: is physically hosted by..'s
own or leased servers, and is maintained in constant operation
by .or its associates to the best of..'s commercial effort
- Content: shall display, incorporate and contain
all the existing subject matter provided by ., and such
as are added from time to time.
- ITOI wont be liable to provide any services for business
related to promoting Pornography, Gay, Lesbian related
businesses, Casino, Drug, or any unethical sites contradicting
to the Policy of Excellone
- PROPRIETARY RIGHTS
- Intellectual Property Rights [IPRs]. IPRs include
all copyrights, patents, trade secrets moral rights,
author's rights and other IPRs as may exist now or may
come into existence hereafter, regardless of whether
such rights arise under the laws of the India, or any
other jurisdiction anywhere in the world.
- Trade Dress. Each party shall at all times
retain ownership of all IPRs in its respective names,
logos, trademarks, trade names, trade dress and the
look and feel of the individual websites.
- End-User Data and Personally Identifying Information.
All data collected by Excellone from end-users shall
be the proprietary information of ..........., but Excellone.com
au shall furnish, from time to time, and as per any
other arrangements arrived at, all information pertaining
to end-user data to .........................
- FEES
- Total agreed initial development fees = ........................
- ................ ...will pay................ and Excellone
develop the web design
- .................. and Excellone sign the contract
(MOU) - ................... will pay another ...........
- ................... will pay Excellone, ...... .....-
after completing the project.
- ................... will pay Excellone , ............-
at the time of hosting the site.
- .................... will pay Excellone.com.au the
balance of .............- 3 months after hosting the
site.
- Annual Maintenance Fee. An Annual Maintenance contract
towards maintaining and updating the site can be signed
between both the parties if agreeable to both the parties.
- Other Fees & Charges Any additional fees will
have to be agreed between both the parties.
- PROPRIETARY RIGHTS
- Intellectual Property Rights [IPRs]. IPRs include
all copyrights, patents, trade secrets moral rights,
author's rights and other IPRs as may exist now or may
come into existence hereafter, regardless of whether
such rights arise under the laws of the India, or any
other jurisdiction anywhere in the world.
- Trade Dress. Each party shall at all times
retain ownership of all IPRs in its respective names,
logos, trademarks, trade names, trade dress and the
look and feel of the individual websites.
- End -User Data and Personally Identifying Information.
All data collected by Excellone.com.au from end-users
shall be the proprietary information of , but Excellone.com.au
shall furnish, from time to time, and as per any other
arrangements arrived at, all information pertaining
to end-user data to.
- TERM AND TERMINATION
- Term. This AGREEMENT shall remain in force
for a period of 4 months from the Effective Date (the
Term), and shall be renewed for a further period of
time by mutual agreement.
- Termination for Convenience. Either party may
terminate this AGREEMENT at any time for convenience
upon (30) days written notice to the other party.
- Termination for Cause. This AGREEMENT may be
terminated by either Party if (i) a receiver is appointed
for either Party or its property, (ii) either party
makes an assignment for the benefit of its creditors,
(iii) any proceedings are commenced by, for or against
either Party under any bankruptcy, insolvency or debtor's
relief law for the purpose of seeking a reorganization
of such Party's debts, and such proceeding is not dismissed
within ninety (90) calendar days of its commencement,
(iv) either Party is liquidated or dissolved; or (v)
this AGREEMENT may also be terminated immediately by
the non-breaching Party in the event of any material
breach of this AGREEMENT by giving thirty (30) days
prior notice to the breaching Party, unless the breaching
Party has cured such breach during this thirty (30)
day period.
- EFFECT OF TERMINATION
- In the event of this AGREEMENT being terminated by
ITOI for any reasons not covered under Section 7.3 above,
and within thirty (30) days of the Execution Date, 100%
of the One-time installation fee would be refunded to
.. No refunds would be applicable on the Annual Maintenance
fee.
- In the event of this AGREEMENT being terminated by
ITOI under section 7.3 above, and within thirty (30)
days of the Execution Date, a 50% refund of the One-time
installation fee would be refunded to . No refunds would
be applicable on the Annual Maintenance fee.
- In the event of this AGREEMENT being terminated by
.. for any reasons not covered under Section 7.3 above,
and within thirty (30) days of the Execution Date, No
refund of the One-time installation fee would be made
to ... No refunds would be applicable on the Annual
Maintenance fee.
- In the event of this AGREEMENT being terminated by
. under section 7.3 above, 50% of One-time installation
fee will be refunded.
- NON-EXCLUSIVE
No right granted by this AGREEMENT shall be interpreted
as being exclusive in nature unless otherwise exclusively
stated in this AGREEMENT.
- WARRANTIES
Excellone.com.au represents and warrants to that it has
the full power and authority to grant the rights and licenses
granted to .. in this AGREEMENT, that it owns or has the
license to the Intellectual Property Rights to all materials
and information licensed by Excellone.com.au to . here in,
and that the use contemplated by of said materials and information
does not infringe any IPRs of any third party, or create
any liability to any third party.
.. represents and warrants to Excellone.com.au that it
has the full power and authority to grant the rights and
licenses granted to Excellone.com.au in this AGREEMENT,
that it owns or has the license to the Intellectual Property
Rights to all materials and information licensed by to Excellone.com.au
herein, and that the use contemplated by Excellone.com.au
of said materials and information does not infringe any
IPRs of any third party, or create any liability to any
third party.
Each Party represents and warrants to the other that the
individual signing this AGREEMENT on its behalf has the
full right, power and authority to bind the respective Party
fully thereto.
- DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED
OR STATUTORY, REGARDING ANY AND ALL PRODUCTS, SERVICES,
CONTENT, EQUIPMENT OR FACILITIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES
CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR
TRADE ITOI.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY GUARANTEES THAT THE OPERATION OF ITS INTERNET PORTAL
(S), SITE (S), OR SERVER (S) OR THE PERFORMANCE OF ITS ON-LINE
FUNCTIONS AND SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED
OR FREE FROM VIRUSES OR OTHER MALIGNANT DATA PROCESSES.
NEITHER PARTY GUARANTEES THAT DATA SUBMITTED OR HELD IN
STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET
WILL BE SECURE FROM UNAUTHORIZED ACCESS.
- INDEMNIFICATION
Excellone.com.au agrees to indemnify, defend, and hold
harmless. and its successors, officers, directors, and employees
from and against any and all actions, causes of action,
claims, demands, costs, liabilities, expenses, judgments,
proceedings and damages (including reasonable attorneys
fees): (i) arising from ITOI's performance or lack of performance
of its duties under this AGREEMENT; or (ii) arising from
ITOI's breach of any warranty and/or representation.
agrees to indemnify, defend, and hold harmless Excellone.com.au
and its successors, officers, directors, and employees from
and against any and all actions, causes of action, claims,
demands, costs, liabilities, expenses, judgments, proceedings
and damages (including reasonable attorneys fees): (i)arising
from .'s performance or lack of performance of its duties
under this AGREEMENT; or (ii) arising from ..'s breach of
any warranty and/or representation.
- LIMITATION OF LIABILITY
EACH PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT IS LIMITED
TO THE VALUE OF SERVICES RENDERED.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER,
WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL
OR EQUITABLE THEORY (INCLUDING STRICT LIABILITY) FOR ANY
INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE
OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY
IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY
OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
- CONFIDENTIAL INFORMATION
- Definition. "Confidential Information" shall
include all information that either Party considers
confidential. It shall include, but not be limited to,
any and all methods, processes, strategies, equipment,
plans, formulas, software, programs, sales and marketing
information, technical and financial information, data,
know-how, documentation and other information disclosed
after the Effective Date, whether disclosed visually,
orally, or in writing, and whether or not tangibly recorded,
by one Party ("the Disclosing Party") to the other Party
("the Receiving Party").
- Proprietary Nature. Except as otherwise provided
in this AGREEMENT, each Party considers its Confidential
Information to be proprietary. Except as otherwise provided
in this AGREEMENT, all of the Disclosing Party's Confidential
Information shall at all times, and throughout the world,
remain the property of the Disclosing Party, exclusively,
and all applicable IPRs in Disclosing Party's Confidential
Information shall remain the property of the Disclosing
Party, exclusively.
- Confidential Information Upon Termination.
Upon termination of this AGREEMENT, the Receiving Party
shall return to the Disclosing Party all tangible materials
and copies thereof containing Confidential Information
received from the Disclosing Party.
- MISCELLANEOUS
- Expenses. Each Party will bear all of its own
expenses necessary to meet its duties and obligations
under this AGREEMENT
- Independent Contractors. The Parties act under
this AGREEMENT solely as independent contractors of
one another. No agency, partnership, joint venture or
employment is created as a result of this AGREEMENT.
Except as expressly provided by this AGREEMENT, no Party
will be liable for or bound by any representations,
acts or omissions whatsoever of the other.
- Non-Transferability. Each Party agrees that
it will not sell, transfer, assign, sublicense, pledge,
lease, subcontract, rent or share any of its rights
or duties under this AGREEMENT unless otherwise permitted
by a specific provision of this AGREEMENT or pursuant
to the prior written permission of the other Party
- Press Releases. Any press releases, or media
releases, or other similar public announcements by either
Party concerning this AGREEMENT or the business arrangement
established by this AGREEMENT must be approved by both
Parties prior to their release to any news outlet.
- Force Majeure. No Party will be responsible
for the breach of any obligation established in this
AGREEMENT if such breach is caused, directly or indirectly,
by war (declared or undeclared), insurrection, civil
disturbance, orders, rules, regulations or decrees of
any competent government authority, strikes, labour
shortages, fire, flood, earthquake, storm, failure of
Internet access service, power outage, or act of God.
- Entire Agreement. This AGREEMENT sets forth
the entire understanding and supersedes all prior and
contemporaneous agreements between the Parties relating
to the subject matter contained herein and merges call
prior and contemporaneous discussions between them.
Neither Party shall be bound by any definition, condition,
representation, warranty, covenant or provision other
than as expressly stated in or contemplated by this
MOU or as subsequently shall be set forth in writing
and executed by an authorized representative of the
Party to be bound.
- Procedure for Modification. Any amendment to
this AGREEMENT must be in writing and signed by an authorized
representative of each Party.
- Severability and Frustration of Purpose. All
clauses and covenants contained in this AGREEMENT are
severable. In the event that any clause or covenant
of this AGREEMENT shall be unenforceable or invalid
under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity
shall not render this AGREEMENT unenforceable or invalid
as a whole.
- Waiver. Any waiver by any Party of any default
or breach of any clause or covenant of this AGREEMENT,
whether such waiver be direct or implied, shall not
be construed to be a continuing waiver, or a waiver
of or consent to, any subsequent default or breach on
the part of either Party of the same or of any other
clause or covenant of this AGREEMENT.
- Notices. All notifications between the Parties
relating to this AGREEMENT must be made in writing.
Such notifications may be made by registered postal
service, express courier service, fax or e-mail. The
Parties designate the following addresses for the purpose
of receiving notices under this AGREEMENT.
Excellone.com.au
Attention
Title
Excellone.com.au
Sydney, Australia.
...................................
Attention:
...................................
...................................
In the event of any changes in the above information
by a Party to this AGREEMENT, the other Party must be
given written notice thereof at least five (5) working
days in advance of the change of address.
- Governing Law. This AGREEMENT shall be governed
by, and construed in accordance with the laws of the
Republic of -------
- Counterparts. This AGREEMENT may be executed
in two (2) or more counterparts, each of which shall
be deemed an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS, the Parties have caused this AGREEMENT to
be executed by their duly authorized representatives.
ACKNOWLEDGED, AGREED TO, AND ACCEPTED BY:
...
By:
Name:
Title:
Date: |
Excellone.com.au
By:
Name:
Title:
Date: |
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