Development Agreement - Pro Developer

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MASTER DEVELOPMENT AGREEMENT

MASTER DEVELOPMENT AGREEMENT (the “Agreement”) dated as of ___________, 20__ by and between the customer executing this Agreement below (“Customer”) and [Supplier], Inc., a Delaware corporation (“Supplier”):

RECITALS:

WHEREAS, Customer desires to engage Supplier from time to time pursuant to one or more Statements of Work (SOWs) to develop, create, test, and deliver certain computer software, and Supplier is interested in accepting such engagements, subject to the parties' further agreement on the scope and terms of each such SOW; and

WHEREAS, Customer and Supplier mutually desire to set forth in this Agreement certain terms applicable to all such engagements;

AGREEMENT

NOW, THEREFORE, Customer and Supplier, intending to be legally bound, hereby agree as follows:

1.                  DEFINITIONS. 

When used in this Agreement and in each SOW issued hereunder, the capitalized terms listed in this Section 1 shall have the following meanings:

“Code” means computer programming code. If not otherwise specified, Code includes both Object Code and Source Code. Code includes any Maintenance Modifications or Basic Enhancements to the Code created by Supplier, and includes Major Enhancements when added to the Code in connection with a SOW issued under this Agreement.  “Object Code” means the machine-readable form of the Code.  “Source Code” means the human-readable form of the Code and related system documentation including all comments and any procedural code such as job control language.

“Deliverables” means all Code, Documentation, and other materials developed for or delivered to Customer by Supplier under this Agreement and under any SOW issued under this Agreement.

“Derivative Work” means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work also includes any compilation that incorporates such a preexisting work.

 “Error” means any error, problem, or defect resulting from (1) an incorrect functioning of Code, or (2) an incorrect or incomplete statement of diagram in Documentation, if such an error, problem, or defect renders the Code inoperable, causes the Code to fail to meet the specifications thereof, causes the Documentation to be inaccurate or incomplete in any material respect, causes incorrect results, or causes incorrect functions to occur when any such materials are used.

“SOW” or “Statement of Work” means a purchase offer of Customer, a proposal of Supplier, or another written instrument that meets the following requirements:  (1) includes substantially the following statement: “This is SOW No. __ dated _______ entered into under the MASTER DEVELOPMENT AGREEMENT dated as of ___________, 20__ by and between ____________ and __________”; (2) is signed on behalf of both parties by their authorized representatives; (3) contains the following four mandatory items: (a) description and/or specifications of the services to be performed and the Deliverables to be delivered to Customer; (b) the amount, schedule, and method of payment; and (c) the time schedule for performance and for delivery of the Deliverables.  In addition, when applicable, the SOW may include such other terms and conditions as may be mutually agreeable between parties

2.                  CONTRACT ADMINISTRATION; CHANGES. 

The initial SOW(s) agreed to by the parties are set forth as attachments to this Agreement. Additional SOWs, regardless of whether they relate to the same subject matter as the initial SOW(s), shall become effective upon execution by authorized representatives of both parties.  Changes in any SOW or in any of the Specifications or Deliverables under any SOW shall become effective only when a written change request is executed by authorized representatives of both parties. 

3.                  COMPENSATION. 

3.1  Time and Materials.  »

Payment for work under this Agreement shall be on the basis of time and materials.  Payment under this method shall be determined according to the hourly rates set for Supplier's employees by skill level in the Statement of Rates set forth in Exhibit A attached hereto.  Supplier shall use commercially reasonable effort to complete the specified services and/or Deliverables specified on the SOW for no more than the aggregate amount set forth therein.  Should Supplier determine at any time that it may be necessary to exceed such aggregate amount, Supplier shall notify Customer in writing.  In such notice, Supplier shall set forth Supplier's estimate of the cost to complete the pertinent services and/or Deliverables. Following receipt of such notice, Customer shall either instruct Supplier to halt work with respect to such services and/or Deliverables, to continue on a time and material basis, or to suspend work pending further negotiation of a fixed price for completion.

3.2  Statement of Rates.  »

Rates quoted by Supplier in its Statement of Rates are subject to change upon 30 days' advance notice, provided that any such change shall have no effect upon rates or charges for work already rendered.

3.3  Taxes.  »

Customer shall have sole responsibility for the payment of all taxes and duties imposed by all governmental entities, except solely taxes imposed on the net income of Supplier.

4.                  INVOICING; RECORDS. 

Supplier shall submit invoices to Customer for payment for work and/or Deliverables at such time or times as payment becomes due under each SOW. Invoices shall be net 30 days.  All invoices shall specifically refer to the SOW to which they relate.  Each invoice shall separately set forth reimbursable expenses, if any. Supporting documentation (e.g., receipts for air travel, hotels, and rental cars) shall be available for inspection at Supplier's offices.  Any extraneous terms on Customer's purchase order or other documents shall be void and of no effect.  Supplier shall maintain accounting records in accordance with its normal accounting practices to substantiate Supplier's charges under each SOW and on each invoice.  Supplier shall preserve such records for a period of at least two years after completion of the pertinent work. Customer shall have access to such records for purposes of audit, either through its own representatives or through an accounting firm selected and paid by Customer. Any such review of Supplier's records shall be conducted at reasonable times during business hours.

5.                  DELIVERY AND ACCEPTANCE. 

5.1  Delivery and Testing.  »

Delivery will occur when Supplier delivers a testable Deliverable to Customer accompanied by a written statement listing the items delivered and stating that they are ready for Customer's acceptance testing.  Customer, with the assistance of Supplier if requested by Customer, will examine and test each Deliverable upon delivery to determine whether the Deliverable conforms to the Acceptance Criteria for the Deliverable.  Within five (5) calendar days, Customer will provide Supplier with written acceptance of such Deliverable or a specific and objective statement of Errors to be corrected prior to the next Milestone.  Supplier will use commercially reasonable efforts to correct the Errors in any Deliverable set forth in the statement of Errors and redeliver the Deliverable to Customer within a commercially reasonable period of time given the number and complexity of the Errors, and Customer will within five (5) calendar days after such redelivery provide Supplier with written acceptance or another statement of Errors.  The procedure set forth in this paragraph will be repeated until Customer accepts the Deliverable or terminates the process pursuant to Section 5.2, or Supplier terminates the process pursuant to Section 5.3.

5.2  Acceptance.  »

If Customer makes the Deliverable generally available for commercial use in the manner contemplated by the SOW, or fails to give a statement of Errors within the specified time, Customer shall be deemed to have accepted the Deliverable.

5.3  Rejection.  »

Should Customer require Supplier to repeat the procedure set forth in Section 5.1 after the Deliverables fails to meet the Acceptance Criteria after the fourth redelivery (or such other number of allowed redeliveries agreed to the parties), and Supplier can demonstrate to the satisfaction of an independent third party selected by the parties jointly that none of the problems identified by Customer constitute Errors under this Agreement, then the License Programs will be deemed to have passed the Acceptance Test.  Alternatively, if after such number of redeliveries Supplier can demonstrate to the satisfaction of an independent third party selected by the parties jointly that completion of such Deliverables is technically impossible or commercially impractical, then Supplier may terminate its obligation to deliver the Deliverables by notice to Customer referring to this paragraph.

5.4  Acceptance Criteria.  »

A Deliverable shall be considered to have met its Acceptance Criteria if it contains no Error in the Object Code which allows a specific function or process to prevent the system from functioning in the prescribed manner: a system failure and does not otherwise fail to meet its specifications in a material manner.  Problem in data format or content which produces an unattractive display, requiring a “cosmetic change” shall not be sufficient for rejection.

6.                  OWNERSHIP AND RIGHTS. 

6.1  Definition of Intellectual Property.  »

“Intellectual Property” means software, including all know-how, trade secrets, copyrights, and patentable inventions relating thereto, including materials notes, designs, technical data, ideas, know-how, research, reports, documentation and other information related thereto.

6.2  Pre-existing Supplier Materials.  »

Supplier is providing to Customer certain Intellectual Property, including without limitation the computer software described on Exhibit A (the “Pre-existing Supplier Materials”).

All “Inventions” (which term includes improvements, inventions, designs, formulas, works of authorship, trade secrets, technology, algorithms, computer programs, ideas, processes, techniques, know-how and data, whether or not patentable) made or conceived or reduced to practice or developed by Supplier either alone or jointly with others, during the term of this Agreement in the course of creation of the Created Materials shall be the sole property of Supplier and shall be considered Pre-existing Supplier Materials.  To the extent of any interest of Customer therein, Customer agrees to assign and, upon its creation, automatically assigns to Supplier the ownership of such rights, without the necessity of any further consideration.

Supplier shall retain ownership of all Pre-existing Supplier Materials.  Supplier hereby grants to Customer the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to use the Pre-Existing Supplier Materials solely in connection with the Deliverables.

6.3  Pre-existing Customer Materials.  »

Customer shall retain ownership of all Intellectual Property developed and/or purchased by Customer or on Customer's behalf prior to this Agreement and to all Intellectual Property developed and/or purchased by or on Customer's behalf without the active participation of Supplier (“Pre-existing Customer Materials”).

6.4  Created Materials.  »

All right, title and interest to the copyright to materials created by Supplier under this Agreement (“Created Materials”) shall be owned by Customer, but such rights shall be subject to the provisions of this Agreement and any rights of Supplier in Pre-existing Supplier Materials incorporated into such Created Materials, or of which such Created Materials are a Derivative Work and further subject to the rights granted hereunder for Supplier's use of Created Materials.

6.5  Supplier Use of Created Materials.  »

Supplier shall have the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to (1) use, execute, reproduce, display, perform, distribute internally or externally, sell copies of, and prepare derivative works based upon the Created Materials and derivative works thereof and (2) authorize or sublicense others from time to time to do any or all of the foregoing.  Supplier shall have the perpetual, non-exclusive, worldwide, right under any patents embodied in the Created Materials to the extent required by Supplier to exploit the Created Material and exercise its full rights in the Created Materials, including (without limitation) the right to make, use, and sell products and services based on or incorporating such Created Materials.  Supplier's rights under this paragraph shall be without obligation of royalty or per copy payment to Customer.  It shall be a condition of this paragraph that all Customer confidential information and any reference to Customer has been removed from such Created Materials before such use of the Created Materials.

7.                  CONFIDENTIAL INFORMATION. 

Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as contemplated under this Agreement, and neither party shall disclose such Confidential Information to any third party.  However, any of the Confidential Information may be disclosed to directors, officers, employees, attorneys, accountants, contractors or representatives (collectively, “Representatives”) of the recipient, but only if such Representatives need to know the Confidential Information for the performance of their duties in connection with use of the Deliverables under this Agreement, it being understood (x) that such Representatives shall be informed by the recipient of the confidential nature of the Confidential Information and the requirement that it not be used other than for the purpose described above, (y) that such Representative shall be required to agree to and be bound by the terms of this paragraph of this Agreement as a condition of receiving the Confidential Information and (z) that, in any event, the recipient shall be responsible for any breach of this Agreement by any of its Representatives.  Notwithstanding the foregoing, neither party shall have liability to the other with regard to any Confidential Information of the other which: (i) was in the public domain at the time it was disclosed or enters the public domain without violation of this Agreement by the receiver; (ii) was known to the receiver, without restriction, at the time of the disclosure as shown by the files of the receiver in existence at the time of disclosure; (iii)  was independently developed by the receiver without any use of the Confidential Information and by employees or other agents of (or contractors hired by) the receiver who have not been exposed to the Confidential Information; or (iv) becomes known to the receiver, without restriction, from a third party without breach of this Agreement by the receiver and otherwise not in violation of the discloser's rights. The parties' obligations under this paragraph with respect to non-technical sales, marketing and financial Confidential Information terminate five (5) years from disclosure. The parties' obligations with respect to all technical Confidential Information shall survive termination of this Agreement.

Notwithstanding ownership by Customer of the Created Materials, or anything else to the contrary in this Agreement, Supplier and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any confidential or proprietary information of Customer.

Supplier may, for the purpose of marketing its custom software development services, divulge to its customers and prospects that Supplier has developed custom software for Customer. Supplier may demonstrate the applications it developed to its prospects.

8.                  LIMITED WARRANTIES; INDEMNIFICATION. 

8.1  Limited Warranties and Disclaimers

(a)                Supplier warrants for a period of one year from the deliverable of a Deliverable, that such unmodified Deliverable will operate substantially in accordance with its specifications. 

 

(b)               Supplier warrants that services will be performed consistent with generally accepted industry standards.  This warranty shall be valid 90 days from performance of service.

(c)                Supplier represents and warrants that the Deliverables are designed to be used prior to, during, and after the calendar year 2000 A.D., and that the Deliverables will operate during each such time period without error relating to date data, specifically including any error relating to, or the product of, date data which represents or references different centuries or more than one century, assuming a similar capability in the hardware and software with which it is operated.

(d)               Supplier represents and warrants Supplier has taken reasonable steps to test the Deliverables for programming devices (e.g., viruses, key locks (including, without limitation, that control the number of users), backdoors, etc.) that would (a) disrupt the use of the Deliverable or any system, device or software to which the Deliverable is interfaced or other computer equipment with which such equipment communicates; (b) destroy or damage data or make data inaccessible or delayed, except for file and purge routines necessary to the routine functioning of the Deliverable; or (c) permit Supplier personnel, agents or subcontractors access to any portion of the Deliverable other than as necessary to carry out the terms of this Agreement.  Supplier agrees to use programming practices and security procedures to avoid insertion of such devices and to scan for viruses before sending any media containing programming code to Customer.

THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Supplier does not warrant that the Deliverables will run properly on all systems, that the Deliverables meet Customer’s requirements, that the Deliverables will operate in the combinations which Customer may select for use, that the operation of the Deliverables will be uninterrupted or error-free, or that all Deliverable errors will be corrected. 

8.2  Exclusive Remedies.  »

FOR ANY BREACH OF THE WARRANTIES CONTAINED IN SECTION 8.1 ABOVE, CUSTOMER’S EXCLUSIVE REMEDY, AND SUPPLIER’S ENTIRE LIABILITY, SHALL BE FOR SUPPLIER TO USE COMMERCIALLY REASONABLE EFFORTS TO MAKE THE DELIVERABLE OPERATE AS WARRANTED.  For such efforts, Supplier shall be compensated according to the Statement or Rates, as amended.

8.3  Indemnification of Customer.  »

Supplier will defend and indemnify Customer against a claim that Deliverables furnished and used within the scope of this Agreement infringe a United States copyright or patent provided that: (a) Customer notifies Supplier in writing within fifteen (15) days of the claim; (b) Supplier has sole control of the defense and all related settlement negotiations; and (c) Customer provides Supplier with the assistance, information and authority necessary to perform Supplier's obligations under this section. Reasonable out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by Supplier.

Supplier shall have no liability for any claim of infringement based on:  (a) use of a superseded or altered release of  Deliverables if the infringement would have been avoided by the use of a current unaltered release of the Deliverables that Supplier provides to Customer; or (b) the combination, operation or use of any Deliverables furnished under this Agreement with software, hardware or other materials not furnished by Supplier if such infringement would have been avoided by the use of the Deliverables without such software, hardware or other materials.

In the event the Deliverables are held or are believed by Supplier to infringe, Supplier shall have the option, at its expense, to (a) modify the Deliverables to be non infringing, (b) obtain for Customer a license to continue using the Deliverables; or (c) terminate the license for the infringing Deliverables and refund the license fees paid for those Deliverables, prorated over a five year term from the date of delivery of the Deliverable. 

THIS SECTION 8.3 STATES SUPPLIER'S AND ITS SUPPLIERS’ ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR INFRINGEMENT OR ANY INTELLECTUAL PROPERTY WARRANTY.

8.4  Indemnification of Supplier.  »

Customer will defend and indemnify Supplier against all claims and damages to Supplier arising from any use by Customer or any end user of any Deliverable or otherwise, excepting solely if such claim is one for which Supplier is required to indemnify Customer under Section 8.3.

9.                  LIMITATION ON LIABILITY.  »

IN NO EVENT SHALL SUPPLIER HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR INTERRUPTED COMMUNICATIONS, RE-RUN TIME, INACCURATE INPUT, WORK DELAYS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE DELIVERABLES OR THE USE OF THE DELIVERABLES BY CUSTOMER, EVEN IF SUPPLIER HAS BEEN ADVISED OR (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES.  FURTHERMORE, IN NO EVENT SHALL SUPPLIER'S LIABILITY UNDER THIS AGREEMENT, INCLUDING FOR DIRECT DAMAGES, EXCEED THE AMOUNT SUPPLIER HAS BEEN PAID BY CUSTOMER UNDER THIS AGREEMENT. THE LIMITATION ON THE SUPPLIER'S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS TO CUSTOMER FOR CLAIMS OR DAMAGES UNDER THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.  THE EXISTENCE OF ONE OR MORE CLAIMS OR SUITS WILL NOT ENLARGE THE LIMIT.  THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION UNDER OR RELATING TO THIS AGREEMENT (CONTRACT, TORT OR OTHERWISE).

10.              TERM AND TERMINATION. 

10.1        Term of Agreement.  »

This Agreement shall be effective upon the date specified at the beginning hereof and shall remain in force until terminated as provided herein. However, this Agreement shall continue to remain in effect with respect to any SOWs already issued hereunder at the time of such termination, until such SOWs are themselves terminated and performance thereunder is completed.

10.2        Termination of Agreement.  »

Either party may terminate this Agreement upon not less than 30 days days' notice to the other party. However, this Agreement shall continue to remain in effect with respect to any SOW already issued hereunder until such other SOW is itself terminated and/or performance thereunder is completed.

10.3        Survival.  »

In the event of any termination of this Agreement, Sections 6, 7, 8, 9, 10 and 11 hereof shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors, and assigns.

11.              MISCELLANEOUS. 

11.1        Delay; Force Majeure.  »

Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure. 

11.2        No Agency.  »

Supplier, in rendering performance under SOWs issued hereunder from time to time, is acting solely as an independent contractor. Customer does not undertake by this Agreement or otherwise to perform any obligation of Supplier, whether by regulation or contract. In no way is Supplier to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement or any SOWs issued hereunder notwithstanding.

11.3        Section Headings; Exhibits.  »

The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. The exhibits referred to herein and attached hereto, or to be attached hereto, including all SOWs issued hereunder from time to time, are incorporated herein to the same extent as if set forth in full herein.

11.4          Required Approvals»

.  Where agreement, approval, acceptance, or consent by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.

11.5        No Waiver.  »

No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.

11.6        Authority of Supplier.  »

Supplier has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be carried out by Supplier hereunder unless otherwise provided herein.

11.7        Language; Governing Law; Currency.  »

This Agreement shall be signed by the parties in the English language.  In the event of any translation, the English language version as signed by the parties shall be determinative.  The validity, construction and performance of this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, applicable to contracts executed in and performed entirely within such Commonwealth, without reference to any choice of law principles of such Commonwealth. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.  The parties agree to non-exclusive personal jurisdiction and venue of the United States District Court of Massachusetts. All amounts of money payable hereunder shall be payable in U.S. dollars unless otherwise expressly stated or otherwise agreed.

11.8        Entire Agreement.  »

This Agreement and the exhibits annexed hereto, together with the SOWs issued from time to time hereunder, constitute the entire agreement between the parties. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by the party against whom such change, waiver, or discharge is sought to be enforced.

 

11.9        Notices.  »

All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to this Agreement will be in writing (and shall be deemed to have been duly given upon receipt), will reference this Agreement and shall be transmitted by express courier or hand delivery or facsimile transmission, addressed to the address following such party's signature on the signature page of this Agreement.  Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent.  Each notice that is delivered or transmitted in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger or courier being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.

11.10    Assignment; Subsidiaries.  »

The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors, executors and administrators, as the case may be; provided that neither party may assign or delegate its obligations under this Agreement either in whole or in part, expressly or by operation of law, without the prior written consent of the other, except that each party may assign this Agreement (A) to any Subsidiary (as defined below) or company of which it is a Subsidiary so long as it remains responsible for such Subsidiary's performance or (B) to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Agreement pertains, by purchase of stock, assets, merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Agreement.  Any attempted assignment in violation of the provisions of this Section will be void.  All rights and licenses granted to a party under this Agreement shall apply to that party's Subsidiaries so long as such Subsidiaries agree to comply fully with the obligations imposed on that party by this Agreement and so long as such Subsidiary continues to be a Subsidiary of a party.  Each party shall remain fully liable for the actions and omissions of its Subsidiaries relative to rights granted under this section.  The parties agree, however, that they may not seek to enforce any obligation of the other party (or its Subsidiaries) through a legal action brought against a Subsidiary except to the extent that such action seeks injunctive relief against that particular Subsidiary.  “Subsidiary” of an entity means a corporation, company or other entity (A) more than fifty percent (50%) of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are; or (B) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest (representing the right to make decisions for such corporation, company or other entity) is; in each of (A) and (B) now or hereafter, owned or controlled, directly or indirectly, by the entity in question, as the case may be, but such corporation, company or other entity shall be deemed to be a Subsidiary only so long as such control exists..

11.11    Compliance With Laws.  »

The parties agree that they shall comply with all applicable laws and regulations of governmental bodies or agencies in their performance under this Agreement. Without limiting the generality of the foregoing, neither party will knowingly export or re-export, directly or indirectly, any technical data (as defined by the U.S. Export Administration Regulations) produced or provided under this Agreement, or export or re-export, directly or indirectly, any direct product of such technical data, including software, to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law, without obtaining prior authorization from U.S. Department of Commerce and other competent government authorities to the extent required by those laws.

IN WITNESS THEREOF, Customer and Supplier have caused this Agreement to be signed and delivered by their duly authorized officers, all as of the date first hereinabove written.

 

________________________

 

 

 

By _____________________

Address:

 

________________________

 

 

 

By ________________________

Address:

Exhibit A - Statement of Rates

 

 


_____________________ and _________________

SOW NO. 1

 

Preparation of Work Made for Hire

 

            1.         GENERAL

 

            This is SOW No. 1 dated _______ entered into under the MASTER DEVELOPMENT AGREEMENT dated as of ___________, 200_ by and between ______________ and _____________

 

            2.         SUMMARY OF PURPOSE FOR SOW

 

[Add General description of work or services]

 

            3.         IDENTIFICATION OF PREEXISTING WORKS

 

[Include to the extent known]

 

            4.         EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CUSTOMER, IF ANY

 

[Add if any]

 

            5.         DESCRIPTION OF DELIVERABLES

 

[Include reference to Specifications]

 

            6.         PAYMENT SCHEDULE

 

Customer will pay Supplier for the work in accordance with the following payment schedule:

 

Milestone

 Due Date

Amt.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total:

 

$

 

 

            Each payment specified above is an estimate of the amount of the progress payment due, and is not dependent on completion of any milestone; amounts due are due on the applicable dates based on actual hours multiplied by the time worked prior to that date, which will be invoiced by Supplier. 

 

            Notwithstanding the foregoing:

 

            (i)         The final payment of $_________ is only due upon Acceptance of the Project.

 

            (ii)        In no event will Supplier be entitled to payment of more than an aggregate of $_________ (plus reimburseable expenses) for all work set forth in this SOW No. 1 done prior to Acceptance of the Project (it being understood that additional work for post-acceptance services, or due to expansion of the scope of the project may be undertaken by agreement of the parties at an agreed-upon additional cost).

 

            (iii)       In the event Supplier does not deliver the Project on the ______ targeted final delivery due date, Supplier will ________________.

 

            7.         SCHEDULE AND PERFORMANCE MILESTONES

 

            Single Performance Milestone for Single Deliverable:  Complete project on _________.

 

            8.         ACCEPTANCE AND TESTING PROCEDURES

 

[Add if any]

 

Executed as of the date first written

 

________________________

 

 

 

By _____________________

Address:

 

________________________

 

 

 

By _____________________

Address:

 

 

 

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