- Oct 19, 2001
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Hello,
I have been on this board off an on for a few months, and I can only say I have gotten incredible assistance for all of my problems in developing a server farm solution and all subsequent problems. I appreciate everybody's help so far. This post will be the biggest challenge yet, but I think this will be a great puzzle for all of us to get involved with.
What I need is for anybody who can give feedback on this topic to please do. Below you will find an agreement my company has assembled for our software development. I will not hold anybody, nor am I able to, to any statements made on this board. What I need is my own, as well as my board of director's, satisfaction that this agreement is not too strict or is an adequate development agreement for both customer and developer. Also, I am dealing with several development companies, one of which we have already done business with, and I am having a hard time getting them to sign the agreement. One blatantly refuses and only wants to sign a simple work for hire agreement. They are saying the restrictions are not fair and are too strict.
If anybody can make any comments, as I said before, please do. I would also appreciate if any responders would list their occupation or experience in this matter, so we can have some feeling of validity. Do not worry about the boilerplate provisions, our attornies will worry about the legal stuff, as I am more concerned with the elements of the agreement that place responsibilities on the developer. I also need to know if these development companies are trying to avoid any liability in the software they produce and if they are not willing to sign the agreement if I should just look elsewhere.
I hope we can all work together on this, and once we have a finished product, we may all have a standardized software development agreement to share that we will all know is fair.
Thank you for your assistance,
Jason King
"aka" DirtyLiLTechboy
__________________________________________________________________________________________________
Web Site Development Agreement
By And Between
Customer and Developer
1. Introduction
The agreement ("Agreement") is made and entered into as of ________ __, 2001 between Customer, and Illinois Corporation, and Developer.
2. Purpose
Customer is in the business of online auctions, online classified advertising, rich media, content distribution, free personal home pages, web-hosting, picture hosting, domain name redirection, domain name reservation, internet searching, targeted and non-targeted banner advertising, email redirection, and electronic retailing.
Customer would like to enter agreements with Developer. Developer?s duties will include, but will not be limited to:
Bla bla bla I guess that we would cut and paste the hard requirements here, so that the exact details are outlined with
the agreement, not on the side so that they entire list of expectation is summed up in one formal document.
In exchange for Customer entering agreements with Developer, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Developer agree as follows:
· That the Developer is an independent contractor performing a work-for-hire web site and interactive database
development service under the Copyright Act;
· That all screens, graphics, domain names, content and the look-and-feel of the site developed shall be owned solely by
Customer, together with all underlying software, object code, digital programming, source code, and the like;
· That all intellectual property developed in connection with the site will be owned solely by Customer;
· That Developer in developing the site, will not infringe or violate the copyright and other intellectual property rights of third parties;
· That if Developer is bundling or using any prior intellectual property that it owns and of which it wishes to keep ownership, that Customer will receive a perpetual, irrevocable, worldwide, royalty-free transferable license to the same;
· Customer is responsible for securing various rights, licenses, clearances, and other permissions related to works, graphics or other copyrighted materials to be used or otherwise incorporated in the Web site; and
· That a copyright notice will be displayed on designated parts of Customer?s site.
· Developer will create a timetable and budget for completion of the site, including specific payment milestones as progress is made on site development;
· A mechanism will be developed allowing for change orders by Customer regarding the specifications for the site, without the change orders resulting in exorbitant extra costs or delays;
· That Developer will timely provide documentation and source codes for all software associated with the site;
· That Developer will train executives of Customer to use and maintain the software associated with the site, both initially and at the time of each upgrade; the number of business days and the location of the training can be specified;
· That Developer assumes responsibility for transferring the site?including all software?to Customer's server and (if applicable) agrees to oversee the site's installation on that server;
· That the developer provides alternative screen page shots for Customer to review and decide upon;
· A commitment by Developer to a period of joint beta testing of the site and a subsequent Acceptance Testing period during which Customer may evaluate the site on its premises to make sure the site functions as anticipated and in accordance with the agreement;
· That Customer will have the right to reject the site if it does not meet designated specifications and Customer options regarding corrections at the time of a rejection;
· Use by Developer of the most current standards of technology in development of the site;
· That the site be compatible with the latest versions of Internet browser software, especially the Microsoft, Netscape and AOL browsers;
· Developer accepts the duty to fix any bugs and failed links of all software developed by Developer, including a maximum time for correction of 12 hours from notification and that Developer acknowledges that all software that is developed will be mission critical application software and that any failure of any software will cause irreparable financial damage.
· Developer will provide the scope and procedure for Customer being able to easily access, record, and compile information about the site?s users and customers.
3. Acknowledgment of At Will Agreement
Developer acknowledges that their agreement with Customer is at will and that Customer may terminate Developer?s agreement with Customer at any time for any reason.
4. Nondisclosure of Confidential Information
(A) Customer may need to disclose to Developer or give Developer access to Confidential Information so that Developer may properly fulfill their duties to Customer. "Confidential Information" means Customer's trade secrets; technology; equipment research; product formulas; design and development; database, website or network specifications or contents; product pricing information, research, design or development; contemplated new products or services; engineering processes or methods; any licensing arrangements, copyrights, patents, trademarks, service marks, titles, themes, stories, treatments, ideas, art work or logos; computer hardware or software; customer lists (including names, addresses, attributes, requirements, special needs and other data); business plans or strategies; advertising, marketing or publicity campaigns; market research and analyses (including focus group or survey results); personnel and hiring information (including salary, sales commission or bonus data); credit information; sales projections; accounting or financial data; names, locations of and agreements with vendors, suppliers and strategic business alliance partners; and all other intellectual property. The Confidential Information may be written ("Written Information"), such as computer source code, programs, hardware and software, tapes, disks, documents, drawings, data or product specifications; or unwritten ("Unwritten Information"), such as unwritten knowledge, ideas, processes, practices or know-how. Confidential Information does not include information that is in the public domain, information that is generally known in Customer?s industry or information that Developer acquired completely independently of their services for Customer
(B) While Developer is employed by Customer and afterward, Developer shall not use or disclose to any other person or entity any Confidential Information, Written Information or Unwritten Information or any copy or summary of any Confidential Information, Written Information or Unwritten Information unless Developer is required to do so to perform Developer's duties to Customer or as required by law.
(C) While Developer is employed by Customer or afterward, Developer shall not remove or copy any Confidential Information or Written Information or participate in any way in the removal or copying of any Confidential Information or Written Information without Customer's written consent. Developer shall immediately return to Customer all Confidential Information and Written Information when Developer's agreement with Customer terminates, or any time Customer requires such Confidential Information or Written Information to be returned.
(D) Developer will not disclose to Customer or misuse any third party's trade secrets, including any trade secret information of Developer?s former and otherwise current associations. Developer represents and warrants that the execution of the Agreement by Developer will not violate or conflict with the terms of any other agreement to which Developer is a party.
5. Nonsolicitation
While Developer is in agreement with Customer, and for a period of five years thereafter, Developer shall not:
(a) employ, attempt to employ or solicit for employment by any other person or entity, any Customer employees;
(b) encourage any consultant, independent contractor or any other person or entity to end their relationship or stop doing business with Customer, or help any person or entity do so or attempt to do so;
(c) solicit or attempt to solicit or obtain business or trade from any of Customer?s current or prospective customers or clients or help any person or entity do so or attempt to do so; or
(d) obtain or attempt to obtain any Confidential Information for any purpose whatsoever except as required by Customer to enable Developer to perform their job duties.
6. Right to an Injunction
Developer acknowledges that their services to Customer are special and unique and that, while performing these services, Developer will have access to and Customer may disclose to Developer the Confidential Information described above.
Developer also acknowledges that their position in Customer will place him or her in a position of confidence and trust with fellow executives, employees, clients and customers of Customer.
If Developer breaches or threatens to breach any of the provisions of Sections 4, 5 or 6 of the Agreement, Customer will sustain irreparable harm. Customer shall be entitled to an injunction to stop any breach or threatened breach of the Agreement, including the provisions of Sections 4, 5 or 6.
Developer acknowledges that monetary damages would not adequately compensate Customer for any breach or threatened breach of these sections and agrees that if Customer seeks injunctive relief to put an immediate halt to the offending conduct, Developer shall not claim that monetary damages would be an adequate remedy.
7. Reasonable Restrictions; Survivability
Developer acknowledges that the restrictions in Sections 4, 5 and 6 of the Agreement are reasonable and necessary for the protection of Customer, its business and its Confidential Information. The Agreement shall survive the termination, for any reason, of Developer's employment with Customer.
8. Severability
If a court determines that any provision of the Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and shall not make any other provision of the Agreement invalid or unenforceable. Instead, the court shall modify, amend or limit the provision to the extent necessary to render it valid and enforceable.
9. Applicable Law
The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.
10. Entire Agreement
This is the entire agreement between the parties. It supersedes and replaces any and all prior oral or written agreements between Customer and Developer that relate to the matters covered by the Agreement.
11. Assignment; Binding Effect
The Agreement binds Customer's successors and assigns, and Customer may assign the Agreement to any party at any time, in its sole discretion, without Developer's consent. The Agreement binds Developer's heirs, successors and assignees. Developer shall not assign any of Developer's rights or obligations under the Agreement without Customer's prior written consent.
12. Waiver
If Developer waives any term or provision of the Agreement, that waiver shall only be effective in the specific instance and for the specific purpose for which Customer gave the waiver. If Customer fails to exercise or delays exercising any of its rights or remedies under the Agreement, Customer retains the right to enforce that term or provision at a later time.
13. Amendment
The Agreement may only be modified, changed or amended in writing, and such writing must be signed by both parties.
14. Counterparts
The parties may execute the Agreement in counterparts, each of which shall be considered an original, and all of which shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the day and year first written above in Section 1.
By: _________________________________________
Customer
Between: _________________________________________
Developer
I have been on this board off an on for a few months, and I can only say I have gotten incredible assistance for all of my problems in developing a server farm solution and all subsequent problems. I appreciate everybody's help so far. This post will be the biggest challenge yet, but I think this will be a great puzzle for all of us to get involved with.
What I need is for anybody who can give feedback on this topic to please do. Below you will find an agreement my company has assembled for our software development. I will not hold anybody, nor am I able to, to any statements made on this board. What I need is my own, as well as my board of director's, satisfaction that this agreement is not too strict or is an adequate development agreement for both customer and developer. Also, I am dealing with several development companies, one of which we have already done business with, and I am having a hard time getting them to sign the agreement. One blatantly refuses and only wants to sign a simple work for hire agreement. They are saying the restrictions are not fair and are too strict.
If anybody can make any comments, as I said before, please do. I would also appreciate if any responders would list their occupation or experience in this matter, so we can have some feeling of validity. Do not worry about the boilerplate provisions, our attornies will worry about the legal stuff, as I am more concerned with the elements of the agreement that place responsibilities on the developer. I also need to know if these development companies are trying to avoid any liability in the software they produce and if they are not willing to sign the agreement if I should just look elsewhere.
I hope we can all work together on this, and once we have a finished product, we may all have a standardized software development agreement to share that we will all know is fair.
Thank you for your assistance,
Jason King
"aka" DirtyLiLTechboy
__________________________________________________________________________________________________
Web Site Development Agreement
By And Between
Customer and Developer
1. Introduction
The agreement ("Agreement") is made and entered into as of ________ __, 2001 between Customer, and Illinois Corporation, and Developer.
2. Purpose
Customer is in the business of online auctions, online classified advertising, rich media, content distribution, free personal home pages, web-hosting, picture hosting, domain name redirection, domain name reservation, internet searching, targeted and non-targeted banner advertising, email redirection, and electronic retailing.
Customer would like to enter agreements with Developer. Developer?s duties will include, but will not be limited to:
Bla bla bla I guess that we would cut and paste the hard requirements here, so that the exact details are outlined with
the agreement, not on the side so that they entire list of expectation is summed up in one formal document.
In exchange for Customer entering agreements with Developer, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Developer agree as follows:
· That the Developer is an independent contractor performing a work-for-hire web site and interactive database
development service under the Copyright Act;
· That all screens, graphics, domain names, content and the look-and-feel of the site developed shall be owned solely by
Customer, together with all underlying software, object code, digital programming, source code, and the like;
· That all intellectual property developed in connection with the site will be owned solely by Customer;
· That Developer in developing the site, will not infringe or violate the copyright and other intellectual property rights of third parties;
· That if Developer is bundling or using any prior intellectual property that it owns and of which it wishes to keep ownership, that Customer will receive a perpetual, irrevocable, worldwide, royalty-free transferable license to the same;
· Customer is responsible for securing various rights, licenses, clearances, and other permissions related to works, graphics or other copyrighted materials to be used or otherwise incorporated in the Web site; and
· That a copyright notice will be displayed on designated parts of Customer?s site.
· Developer will create a timetable and budget for completion of the site, including specific payment milestones as progress is made on site development;
· A mechanism will be developed allowing for change orders by Customer regarding the specifications for the site, without the change orders resulting in exorbitant extra costs or delays;
· That Developer will timely provide documentation and source codes for all software associated with the site;
· That Developer will train executives of Customer to use and maintain the software associated with the site, both initially and at the time of each upgrade; the number of business days and the location of the training can be specified;
· That Developer assumes responsibility for transferring the site?including all software?to Customer's server and (if applicable) agrees to oversee the site's installation on that server;
· That the developer provides alternative screen page shots for Customer to review and decide upon;
· A commitment by Developer to a period of joint beta testing of the site and a subsequent Acceptance Testing period during which Customer may evaluate the site on its premises to make sure the site functions as anticipated and in accordance with the agreement;
· That Customer will have the right to reject the site if it does not meet designated specifications and Customer options regarding corrections at the time of a rejection;
· Use by Developer of the most current standards of technology in development of the site;
· That the site be compatible with the latest versions of Internet browser software, especially the Microsoft, Netscape and AOL browsers;
· Developer accepts the duty to fix any bugs and failed links of all software developed by Developer, including a maximum time for correction of 12 hours from notification and that Developer acknowledges that all software that is developed will be mission critical application software and that any failure of any software will cause irreparable financial damage.
· Developer will provide the scope and procedure for Customer being able to easily access, record, and compile information about the site?s users and customers.
3. Acknowledgment of At Will Agreement
Developer acknowledges that their agreement with Customer is at will and that Customer may terminate Developer?s agreement with Customer at any time for any reason.
4. Nondisclosure of Confidential Information
(A) Customer may need to disclose to Developer or give Developer access to Confidential Information so that Developer may properly fulfill their duties to Customer. "Confidential Information" means Customer's trade secrets; technology; equipment research; product formulas; design and development; database, website or network specifications or contents; product pricing information, research, design or development; contemplated new products or services; engineering processes or methods; any licensing arrangements, copyrights, patents, trademarks, service marks, titles, themes, stories, treatments, ideas, art work or logos; computer hardware or software; customer lists (including names, addresses, attributes, requirements, special needs and other data); business plans or strategies; advertising, marketing or publicity campaigns; market research and analyses (including focus group or survey results); personnel and hiring information (including salary, sales commission or bonus data); credit information; sales projections; accounting or financial data; names, locations of and agreements with vendors, suppliers and strategic business alliance partners; and all other intellectual property. The Confidential Information may be written ("Written Information"), such as computer source code, programs, hardware and software, tapes, disks, documents, drawings, data or product specifications; or unwritten ("Unwritten Information"), such as unwritten knowledge, ideas, processes, practices or know-how. Confidential Information does not include information that is in the public domain, information that is generally known in Customer?s industry or information that Developer acquired completely independently of their services for Customer
(B) While Developer is employed by Customer and afterward, Developer shall not use or disclose to any other person or entity any Confidential Information, Written Information or Unwritten Information or any copy or summary of any Confidential Information, Written Information or Unwritten Information unless Developer is required to do so to perform Developer's duties to Customer or as required by law.
(C) While Developer is employed by Customer or afterward, Developer shall not remove or copy any Confidential Information or Written Information or participate in any way in the removal or copying of any Confidential Information or Written Information without Customer's written consent. Developer shall immediately return to Customer all Confidential Information and Written Information when Developer's agreement with Customer terminates, or any time Customer requires such Confidential Information or Written Information to be returned.
(D) Developer will not disclose to Customer or misuse any third party's trade secrets, including any trade secret information of Developer?s former and otherwise current associations. Developer represents and warrants that the execution of the Agreement by Developer will not violate or conflict with the terms of any other agreement to which Developer is a party.
5. Nonsolicitation
While Developer is in agreement with Customer, and for a period of five years thereafter, Developer shall not:
(a) employ, attempt to employ or solicit for employment by any other person or entity, any Customer employees;
(b) encourage any consultant, independent contractor or any other person or entity to end their relationship or stop doing business with Customer, or help any person or entity do so or attempt to do so;
(c) solicit or attempt to solicit or obtain business or trade from any of Customer?s current or prospective customers or clients or help any person or entity do so or attempt to do so; or
(d) obtain or attempt to obtain any Confidential Information for any purpose whatsoever except as required by Customer to enable Developer to perform their job duties.
6. Right to an Injunction
Developer acknowledges that their services to Customer are special and unique and that, while performing these services, Developer will have access to and Customer may disclose to Developer the Confidential Information described above.
Developer also acknowledges that their position in Customer will place him or her in a position of confidence and trust with fellow executives, employees, clients and customers of Customer.
If Developer breaches or threatens to breach any of the provisions of Sections 4, 5 or 6 of the Agreement, Customer will sustain irreparable harm. Customer shall be entitled to an injunction to stop any breach or threatened breach of the Agreement, including the provisions of Sections 4, 5 or 6.
Developer acknowledges that monetary damages would not adequately compensate Customer for any breach or threatened breach of these sections and agrees that if Customer seeks injunctive relief to put an immediate halt to the offending conduct, Developer shall not claim that monetary damages would be an adequate remedy.
7. Reasonable Restrictions; Survivability
Developer acknowledges that the restrictions in Sections 4, 5 and 6 of the Agreement are reasonable and necessary for the protection of Customer, its business and its Confidential Information. The Agreement shall survive the termination, for any reason, of Developer's employment with Customer.
8. Severability
If a court determines that any provision of the Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and shall not make any other provision of the Agreement invalid or unenforceable. Instead, the court shall modify, amend or limit the provision to the extent necessary to render it valid and enforceable.
9. Applicable Law
The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.
10. Entire Agreement
This is the entire agreement between the parties. It supersedes and replaces any and all prior oral or written agreements between Customer and Developer that relate to the matters covered by the Agreement.
11. Assignment; Binding Effect
The Agreement binds Customer's successors and assigns, and Customer may assign the Agreement to any party at any time, in its sole discretion, without Developer's consent. The Agreement binds Developer's heirs, successors and assignees. Developer shall not assign any of Developer's rights or obligations under the Agreement without Customer's prior written consent.
12. Waiver
If Developer waives any term or provision of the Agreement, that waiver shall only be effective in the specific instance and for the specific purpose for which Customer gave the waiver. If Customer fails to exercise or delays exercising any of its rights or remedies under the Agreement, Customer retains the right to enforce that term or provision at a later time.
13. Amendment
The Agreement may only be modified, changed or amended in writing, and such writing must be signed by both parties.
14. Counterparts
The parties may execute the Agreement in counterparts, each of which shall be considered an original, and all of which shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the day and year first written above in Section 1.
By: _________________________________________
Customer
Between: _________________________________________
Developer