Software Development Services Agreement
This Software Development Agreement (the “Agreement” or “Software Development Agreement”) is
made the XX day of MMM, YYYY (the “Commencement Date”), between
A having his principal place of business at A’s address, California (CA), 91355, (the “Developer”),
and
B having its principal place of business at B’s email (the “Client”)
The Developer and the Client are hereinafter collectively referred to in this Agreement as the
“Parties” and singularly as “the Party”, and both hereby agree to be bound by this Agreement.
WHEREAS, the Client has conceptualized B’s project (the “Software”), which is described in further
detail on Exhibit A, and, in view of the technical knowledge possessed by the Developer with respect
to the scope of services, deems it to be in its own best interest to engage the Developer to provide
certain Software Development Services (“the Services”) upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties to
this Software Development Agreement, the Developer and the Client covenant and agree as follows:
1. Developer's duties
The Client hereby engages the Developer and the Developer hereby agrees to be engaged by the
Client to develop the Software in accordance with the specifications attached hereto as Exhibit A (the
“Specifications”).
1. The Developer shall complete the development of the Software according to the milestones
described on the form attached hereto as Exhibit B. In accordance with such milestones, the
final MVP version is estimated to be delivered to the Client by or before February 15th, 2022
(the “Delivery Date”).
2. The Developer shall provide the Client attention to answer any questions or assist solving any
problems with regard to the operation of the Software billed to the Client at a negotiated
hourly rate for any assistance thereafter. The Developer agrees to respond to any reasonable
request for assistance made by the Client regarding the Software within (ten) 10 days of the
request.
3. Except as expressly provided in this Software Development Agreement, the Client shall not
be obligated under this Agreement to provide any other support or assistance to the
Developer.
4. The Client may terminate this Software Development Agreement at any time upon material
breach of the terms herein and failure to cure such a breach within ten (10) days of
notification of such a breach.
5. The Developer shall provide to the Client after the Delivery Date, a cumulative 2 days of
training with respect to the operation of the Software, if requested by the Client.
2. Commencement and Delivery
Notwithstanding anything else to the contrary, the effective date of the appointment of the Developer
shall be the date on which this Agreement was executed by both Parties.
The term of the Engagement shall be as per Exhibit A and has been defined therein. The Parties shall
only make further extensions upon mutual agreement.
The Software shall function in accordance with the Specifications in the Exhibit A on or before the
Delivery Date.
If the Software as delivered does not conform with the Specifications, the Client shall within 30 days
of the Delivery Date notify the Developer in writing of the ways in which it does not conform with the
Specifications. The Developer agrees that upon receiving such notice, it shall correct any non-
conformity.
The Client shall provide to the Developer written notice of its finding that the Software conforms to
the Specifications within 20 days of the Delivery Date (the “Acceptance Date”) unless it finds that the
Software does not conform to the Specifications as described in Section 2(A) herein.
3. Compensation
Compensation. In consideration for the Service, the Client shall pay the Developer rate per hour (the
“Hourly Rate”), subject to a cap for all work under this Software Development Agreement of $4,000.
Fees billed under the Hourly Rate shall be due and payable upon milestones, as detailed in the Exhibit
A, and the Developer providing the Client with an invoice for each milestone. Invoices will be
provided for work completed and delivered by the developer at beta launch and MVP launch.
Initial deposit in the amount of $800 (20% of total estimated cost) as a retainer is required for the
project to commence.
There will be additional incentive payment for launch support of 0.01% of Treasury balance after 24
hours from Official Launch (Deployment on SpookySwap).
In the Exhibit A the Parties have provided clear deadlines for the delivery of each determined
milestone. In cases of non-compliance with the agreed deadlines and terms, the Client has the right to
break unilaterally the Agreement after a term of ten (10) days from the determined milestone. During
this term, the Developer is obliged to pay penalties of 1% per day of the milestone value. The total
penalty value will be deducted from the next invoice/milestone. In cases of non-compliance with the
payment obligations within ten (10) days from the delivery date of the invoiced milestone, the
Developer has the right to break unilaterally the Agreement, after the passing of such term. During
this term, the Client is obliged to pay penalties of 1% per day of the milestone value, but no more than
10%.
4. Intellectual property rights in the software
The Parties acknowledge and agree that the Client will hold all intellectual property rights in the
Software including, but not limited to, copyright and trademark rights. The Developer agrees not to
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 Client.
5. Change in specifications
The Client may request that reasonable changes be made to the Specifications and tasks associated
with the implementation of the Specifications. If the Client requests such a change, the Developer will
use its best efforts to implement the requested change to the Client and without delaying delivery of
the Software.
In the event that the proposed change will, in the sole discretion of the Developer, require a delay in
the delivery of the Software or would result in additional expense to the Client, then the Client and the
Developer shall confer and the Client may either withdraw the proposed change or require the
Developer to deliver the Software with the proposed change and subject to the delay and/or additional
expense.
The Client agrees and acknowledges that the judgment as to if there will be any delay or additional
expense shall be made solely by the Developer.
6. Termination
Termination by the Client
The Client may, at its sole option, terminate this Agreement or any portion thereof, for any reason,
upon ten (10) days advance written notice to Developer.
The Client may also suspend or terminate this Agreement, or any portion thereof, immediately upon
written notice (which notice shall specify the grounds for termination) if the Developer is in default of
its obligations under this Agreement.
Upon receipt of any notice of suspension or termination, Developer shall advise Client of the extent to
which performance has been completed through such date, and will collect and deliver to Client, in
the manner requested by Client, all work as it then exists.
The Developer shall be paid for all work performed in accordance with this Agreement through the
date of termination.
Termination by the Developer
Developer may, at its sole option, terminate this Agreement, upon ten (10) days advance written
notice to Client, only when there are no outstanding statements of work to be completed by
Developer.
In the event of a breach of this Agreement by the Client, the Developer may give ten (10) days’ notice
in writing of his intention to terminate this appointment setting out the acts or omission of the Client
relied upon as evidence of such breach.
If the Client does not take expeditious steps to repair the breach during the notice period, the
Developer may forthwith, upon the expiry of the notice period terminate the appointment by a further
notice of writing.
7. Transition
In the event of any termination of this Agreement, the Developer agrees that all source code,
documentation and any other related information will be passed to the Client subject to Client paying
any money owed under this agreement.
In the event of any termination of this Agreement by either the Client or the Developer, the Developer
will provide all reasonable assistance to the Client for a period of 12 weeks following termination (the
"Exit Period") to facilitate the orderly transfer of the Services to the Customer or to enable another
party chosen by the Client ("Replacement Supplier") to take over the provision of all or part of the
Services.
The Client shall be entitled to require the Developer to continue to provide the Services during the
Exit Period on the terms of this Agreement if, in the opinion of the Client, such continuation is
required in order to allow for the orderly transfer of the Services to the Client or a Replacement
Supplier.
8. Confidentiality
Protection of Client’s Confidential Information
The Developer shall maintain in strict confidence, and shall use and disclose only as authorized by the
Client and solely for purposes of this Agreement, any of the Client’s Confidential Information.
Client’s “Confidential Information” means any information of Client that would reasonably be
considered non-public, confidential or proprietary given the nature of the information and Client’s
business, and shall include, without limitation, any Client-owned materials.
The Developer undertakes:
• not to use the Confidential Information for any purpose other than the purpose to decide
on whether they invest in the Project;
• not to reverse copy in any form or clone, reengineer, de-compile or disassemble any
samples, prototypes, software or other elements which embody Confidential Information
or permit any third party to do the same;
• not to include Confidential Information in any application for patent or utility model or
design protection in any country filed by or on behalf of the Developer;
• not to use Confidential Information to manufacture, or enable manufacture by third
parties, services that are similar or that are derived from the Client’s Confidential
Information;
• promptly notify the Client upon discovery of any unauthorized use or disclosure of
Confidential Information and take reasonable steps to regain possession of the
Confidential Information and prevent further breach of this Agreement;
• not to copy or reproduce any Confidential Information without the Client's express
written permission, except for such copies as may reasonably be required to carry out the
Purpose specified above;
The Developer hereby acknowledges that:
• the Client has a legitimate interest in protecting its relationship with the users or potential
users, and also its ability to continue to develop, promote the Business and to sell its
services free of interference, whether direct or indirect;
• its legal counsel has specifically directed its attention to, and has reviewed with it, the
provisions of this Agreement, and it fully understands the covenants it has entered into
pursuant hereto and the restrictive effect and binding nature of these covenants upon it;
• it has considered the geographic regions encompassed by such restrictive covenants, the
time period during which such restrictive covenants are to remain in effect and the scope
of activities restrained and agrees that each of the restrictive covenants contained in this
Agreement are both necessary and reasonable for the protection of the legitimate interests
of Client (and its licensees) and they reflect its desire and intent that such provisions be
upheld in their entirety and that Client and the its successors and assigns, including
successors and assigns by virtue of any corporate reorganization or amalgamation, shall
have the full benefit of the restrictive covenants set out in this Agreement.
Exclusions
Notwithstanding the foregoing, “Confidential Information” of either Party does not include:
(i) Information that is or becomes publicly known other than as a result of any action by a
receiving Party in violation of this Agreement;
(ii) Information that was in a receiving Party’s possession or part of its general knowledge prior
to the time of disclosure of such information by or on behalf of such receiving Party;
(iii) Information that is disclosed to a receiving Party without confidential or proprietary
restriction by a third party who such receiving Party reasonably believes has the right to disclose it
without restriction;
(iv) Information that is independently developed by a receiving Party after the termination of this
Agreement without the use of any of the disclosing Party’s Confidential Information; and
(v) Information a Receiving Party is required by law, rule, regulation, or order of a court or other
governmental body to disclose.
(vi) Information required to be disclosed by Client as a publicly listed company which may lead to
Client’s obligation to potentially file this agreement along with others as a material contract.
Return and Destruction of Confidential Information
Each Party shall, upon any termination of this Agreement, in accordance with the other Party’s
instructions, return or destroy all copies of Confidential Information that the Receiving Party has in its
possession or control.
Ownership of and Rights to Intellectual Property
Any patents, patent applications, trademarks, trade names, copyrights, patent licenses, service marks
and any other Intellectual Property Rights owned by Client prior to the term of this Agreement or
subsequently developed by Client during the term of this Agreement for other clients (collectively,
“Client-owned materials”), shall remain in Client’s ownership and shall not become the property of
the Client unless mutually agreed to by the Parties. Client-owned materials, even if incorporated into
any work product, shall remain the exclusive property of Client.
Subject to the terms and conditions of this Agreement, the Developer agrees that all results from the
Services performed by the Developer for the Client hereunder, including without limitation work
product and Proprietary Information, whether or not patentable or registrable under copyright or
similar statutes (“Inventions”) shall be the property of the Client, and the Developer hereby does
assign to the Client all rights in and to such developments. The Client shall at all times maintain
exclusive ownership rights to any and all work developed by the Developer for the Client.
The parties recognize that, in the course of providing the Services hereunder, the results and work
product produced may employ or include know-how and methodology developed or known by the
Developer prior to the commencement of the Services and know-how and methodology gained during
the performance of the Services, which know-how and methodology shall remain the exclusive
property of the Developer.
To the extent that Client incorporates such know-how and methodology into the results and work
product provided to the Client hereunder, Client hereby grants the Client a royalty-free, worldwide,
non-exclusive license to use any such know-how and methodology provided by Client to the Client in
the course of providing the Services under this Agreement, in connection with the use of the results
and work product provided under this Agreement.
To the extent that the Developer is required to incorporate any third party proprietary materials into
the Intellectual Property and work deliverables produced for the Client under this Agreement, the
Developer shall obtain all authorizations necessary for such incorporation and will obtain such
permissions that allow the Client to fully exploit the Intellectual Property and work deliverables
produced.
The Developer shall indemnify the Client against any action, claim, damages, charges and costs that a
court or an arbitration tribunal finally awards arising from or incurred by reason of any infringement
or use of patent, copyrights, trade secrets or other proprietary rights of the equipment, software,
products or consumables supplied or furnished by upon the development of the work product.
Remedies and Injunctive Relief
A breach of any of the promises or agreements contained herein will result in irreparable and
continuing damage to Client for which there will be no adequate remedy at law, and Client shall be
entitled to injunctive relief and/or a decree for specific performance and such other relief as may be
proper (including monetary damages if appropriate).
If the Developer breaches any of the provisions of this Agreement, it shall be obliged to render an
account to Client of all revenues derived from such breach and shall remit to Client all such revenues,
compensation, commissions, remuneration and any other benefits whatsoever which the Developer
may have derived from such breach.
The Developer expressly acknowledges that Client will suffer immediate and irreparable harm as a
result of any violation, breach or threatened breach of this Agreement, or any part hereof, by the
Developer. As such, and in addition to those remedies provided for hereinabove, which, Client shall
be entitled to apply to any court of competent jurisdiction for the issuance of a temporary, provisional
or interlocutory injunction, restraining and enjoining such breach or violation by the Developer and/or
any person, partnership, corporation or other entity which may be acting in consort with the
Developer or to whom the Confidential Information may have been disclosed.
9. Developer warranties
The Developer represents and warrants to the Client the following:
1. Development and delivery of the Software under this Agreement are not in violation of any
other agreement that the Developer has with another party.
2. The Software will not violate the intellectual property rights of any other party.
3. For a period of 10 days after the Delivery Date, the Software shall operate according to the
Specifications. If the Software malfunctions or in any way does not operate according to the
Specifications within that time, then the Developer shall take any reasonably necessary steps
to fix the issue and ensure the Software operates according to the Specifications.
10. Indemnification
The Developer agrees to indemnify, defend, and protect the Client from and against all lawsuits and
costs of every kind pertaining to the software including reasonable legal fees due to the Developer’s
infringement of the intellectual rights of any third party.
11. Force majeure
Both Parties reserve the right to defer the date of completion or to cancel this Agreement (without
liability) if they are prevented from or delayed in the carrying on of their business due to
circumstances beyond their reasonable control including, without limitation, acts of God,
governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood,
epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's
workforce).
12. Representations, Warranties and Covenants
The Developer warrants that:
(i) The Developer and its employees, Developers, etc. have the necessary skill and expertise to
provide the Services to the standard stipulated in this Agreement.
(ii) The Developer shall perform the Services in a diligent and workmanlike fashion in
compliance with all applicable laws, regulations, rules and/or ordinances.
(iii) The Developer warrants that the Intellectual Property, Work, and Work deliverables provided
to Client under this Agreement will meet the requirements, specifications and terms set forth on the
applicable Exhibit A or otherwise provided to the Developer by Client or prepared by the Developer
and approved in writing by Client.
(iii) The Developer warrants to Client that all their work and services is original and does not
infringe the rights of any third party, including copyright of a third party may hold on one of the
components of the software application.
(iv) The Developer also warrants that they own all copyright and intellectual property of the work
handed to the Client and that he may validly assign all its rights in its work to the Client.
Except for the limited warranty set forth in the section above, the Developer does not warrant that the
operation of the work product will be uninterrupted or error free, nor does it guarantee that its
remedial efforts will correct any non-conformance.
The Developer will not make any payments, loans, gifts, or promises, offers or authorizations of
payments, loans, gifts or anything of value, directly or indirectly to, or for the use of benefit in whole
or in part, of any public official or employee of any regulatory authority, public international
organization or state-owned enterprise, or to or for the use of any political party or official thereof, or
candidate for political office (an “Official”), or to any person if any such party knows, has a firm
belief, is substantially certain, or is aware that there is a high probability, that any part of such
payment, loan, gift or promise, offer or authorization (a) is for purposes of corruptly (A) influencing
any act or decision of any Official relating to the Client or any of its affiliates or their businesses,
including the recipient in its official capacity, or (B) inducing such official to (1) do or omit to do any
act in violation of its lawful duty, or (2) use its influence to affect or influence any act or decision of
any regulatory authority or instrumentality thereof with respect to the Client or any of its affiliates or
their business, or (3) securing any improper advantage, in each case, in order to assist the parties in
obtaining or retaining business for or with, or directing business to, any person, unless such payment,
loan, gift or promise or offer thereof is lawful under written applicable law, or (b) would violate any
applicable law.
13. No modification unless in writing
No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.
14. Applicable law
This Software Development Agreement and the interpretation of its terms shall be governed by and
construed in accordance with the laws of the State of California and subject to the exclusive
jurisdiction of the federal and state courts located in Alpine, California.
IN WITNESS WHEREOF, each of the Parties has executed this Software Development Agreement,
both Parties by its duly authorized officer, as of the day and year set forth below.
