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SOFTWARE DEVELOPMENT AGREEMENT
This Software Development Agreement (this ?Agreement?) is made on 2nd
day of March by and between Yourcompany Systems DBA Yourcompany
Medical Solutions (?Client?) and BTQnet Inc., a Texas Corporation
having its office at 6565 xxxxxxxxxxxxxxxxxxxxxxx (?Developer?)
RECITALS
Whereas the Developer is in the business of among other things,
business process consulting and software implementations;
Whereas the Client desires to engage Developer for the purpose of
developing medical software applications;
Whereas, the parties now wish to enter into an agreement whereby the
Developer will develop software and give full ownership of the code
the software to the Client;
NOW, THEREFORE, in consideration of the mutual agreements of the
parties and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITION
(a) ?Services? shall individually or collectively mean services of
design, development, coding, testing, documentation, installation,
training and maintenance of medical software application.
(b) ?Specifications? shall mean any or all of the applicable technical
or other specifications for any of the Deliverables created and
mutually agreed by the parties under the terms of this Agreement and
set forth herein and/or in any applicable exhibit or addendum hereto,
including, without limitation, in Exhibit A, annexed hereto and
incorporated herein.
(c) ?System? shall mean the computer software program(s) described in
Exhibit B to be developed by Developer pursuant to this Agreement
(d) ?Deliverables? shall mean the Software, Documentation and other
materials to be delivered by Developer to Client under this Agreement
in respect of each Milestone.
(e) ?Milestone?: shall mean each development or delivery milestone
of the development Program as set forth in the "Milestone Schedule"
attached as Exhibit C
2. SERVICES
2.1 Engagement: Commencing upon the execution of this Agreement,
Developer agrees to use its commercially reasonable efforts to render
Services to the Client and, to achieve each Milestone in accordance
with Specifications and to deliver Deliverables in accordance with
this Agreement and all the Exhibits attached hereto.
Developer shall not be liable for any failure or delay in performance
under this Agreement to the extent said failures or delays are
proximately caused by causes beyond Developer?s reasonable control and
occurring without its fault or negligence, including, without
limitation, failure of subcontractors, or party to substantially meet
its performance obligations under this Agreement, provided that, as a
condition to the claim of non-liability, the Developer experiencing
the difficulty shall give Client prompt written notice, with full
details following the occurrence of the cause relied upon. Dates by
which performance obligations are scheduled to be met will be extended
for a period of time equal to the time lost due to any delay so
caused.
2.2. Sub Contractor: Developer may subcontract the performance of the
Services to third parties, provided that each such subcontractor shall
have agreed in writing to be bound by terms and conditions at least as
stringent and restrictive as the terms and conditions of this
Agreement
2.3 Program Management and Changes.
a. Each party has designated the person(s) set forth in Exhibit D as
the primary contact of each party with respect to this Agreement,
which person(s) may be re-designated by a party by notice to the
other.
b. In the event of a necessary or desired change in any material
aspect of the Services, Exhibit A (Description of System) or Exhibit B
(Specifications) the parties shall mutually agree to any such change
in writing prior to its implementation. A proposed change shall be
initiated by the proposing party in a written notice to the other
party. The receiving party shall review such proposal in a timely
manner. Any delay in notifying or approving the changes shall be at
the risk and cost of the party causing such delay. In the event, that
such delay is due to the fault of the Client, Client shall be liable
to the Developer for the cost incurred by the Developer due to the
Client?s delay. The parties agree to discuss in good faith the effect
on each party of such proposed change, including any effect on the
binary and/or cost of the Services.
2.4 Developer?s Rights: Client agrees that Developer reserves the
right to determine the method, manner and means - in which the
Services will be performed. Services may be performed either on site
or off site. If any or all Services are performed at on site i.e. in
Client's premises, then the time spent by the Developer?s at the
Client?s premises shall be determined - mutually.
2.5 Compensation: In full and final consideration for any and all
Services performed by Developer, or any and all rights granted or
relinquished by Developer, under this Agreement, Client agrees to pay
Developer the amounts, and according to the schedule, specified in
Exhibit E, annexed hereto and incorporated herein.
3. DELIVERIES AND ACCEPTANCE
3.1 Delivery: Upon completion of each Milestone for which Developer
is responsible, Developer shall promptly notify Client and deliver to
Client the corresponding Deliverables. Prior to the delivery of any
Deliverable, Developer will have performed its internal testing to
assure that such Deliverable conforms to the Specifications.
Deliverables consisting of Documentation shall be in both
human-readable and electronic formats.
3.2 Acceptance:
a. Upon Developer's delivery to Client of Deliverables with respect to
a milestone, Client will evaluate whether such Deliverables conform to
the applicable Specifications pursuant to the acceptance test criteria
and acceptance procedure detailed in 3.2. Client will give Developer
written notice of acceptance or rejection of Deliverable within 5
business days after receipt of the Deliverable (the "Acceptance
Period"). If a statement of rejection is given, Developer agrees to
make commercially reasonable efforts to correct all nonconformities to
Specifications as stated by Client and redeliver the corrected
Deliverables for acceptance within five (5) business days or as agreed
to between the parties after receipt of such notice of rejection.
b. A Milestone shall be deemed completed with Deliverables with
respect to that Milestone accepted by Client, when Client provides a
written acceptance notice to Developer; provided, however, if Client
fails to provide such an acceptance notice or a statement of rejection
to Developer within Acceptance Period, such Deliverables will be
deemed accepted by Client.
c. In the event that Developer fails to deliver to Client acceptable
Deliverables for any Milestone within 10 (10) days after the original
Milestone date therefor, or after three (3) attempts to correct stated
nonconformities to Specifications, Client may in its sole option,
terminate this Agreement pursuant to section 8 Term and Termination or
be entitled to receive a 20% refund on all development costs.
3.3 License. Once all Deliverables have been accepted by Client,
Developer agrees to commercially license the software arising out of
such Services, to the Client within a commercially reasonable time
period after Services have been rendered.
4. MAINTENANCE AND SUPPORT
4.1 Product Evolution: The parties anticipate that Client may from
time to time request additional functionalities to be made to the
System. Upon request by Client, Developer agrees to make such
adaptations, or develop such enhancements on terms and conditions to
be mutually agreed upon in writing in a separate and independent
agreement, which may provide for additional payments by Client to
Developer. The fee for any such adaptations or enhancements shall be
at the Developer's then current rates. See Exhibit C
4.2 Additional Developer Services: Upon request by Client, Developer
agrees to negotiate in good faith with Client with respect to
providing additional maintenance, support or other service with
respect to the System for Client and/or its customers.
. 5. OWNERSHIP AND LICENSE
5.1 Developer Code. Notwithstanding any provision to the contrary,
Developer shall own and retain all right, title and interest it may
have in the Developer Code incorporated within the System existing as
of the effective date of this of this Agreement. With respect to such
Developer Code incorporated within the System, Developer hereby grants
to Client a non-exclusive, world-wide, perpetual right and license,
subject to applicable royalty provisions, in Exhibit E including the
right to sublicense, to use, reproduce, modify, display and distribute
the Developer Code, in binary code only, solely as part of the System.
5.2 Developer recognizes that Client has made a significant investment
in the development of System, and hereby agrees not to resell,
duplicate to any significant degree, or otherwise infringe on the
investment Client has made in the development of System. This includes
not approaching competitors of Client in the demographic of the USA
area in practices with less than 13 physicians with the intent of
duplicating System for a period of 5 years.
5.3 Client Property. Client hereby grants to Developer a
non-exclusive, royalty- free, non-transferable internal license to use
the Client Property and intellectual property embodied therein, for
the sole purpose of performing Developer's obligation under this
Agreement. No Client Property may be provided to any third party
without the prior written approval by Client, unless otherwise
required by open source license. All Client Property shall returned
immediately upon Client's request.
5A NON-SOLICITATION
During the term hereof and for a period of six months thereafter,
Client shall not, directly or indirectly, for Client?s benefit or for
the benefit of any other person, firm or
entity, do any of the following:
(i) solicit the employment or services of any person who at
the time is employed by or a sub contractor of Developer; or
(ii) make any statements or comments of a defamatory or
disparaging nature to third parties regarding Developer or its
officers, directors, personnel, products or services.
6. WARRANTIES AND INDEMNIFICATION.
6.1 Developer?s Representations and Warranties : Developer represents
and warrants that: (a) Developer has all rights and authority
necessary to enter into this Agreement and carry out its terms and
conditions, and such execution and performance will not violate any
agreement or other arrangement with any third party; (b) each of the
Deliverables will materially conform to the applicable Specifications
and, as applicable, operate in accordance with commonly accepted
industry standards for similar Systems; (c) Developer owns all rights,
or has secured all licenses, sublicenses, assignments, permissions,
waivers, releases, consents or other rights and clearances from third
parties (including, without limitation, with respect to any
Third-Party Materials incorporated in any of the Deliverables) that
are necessary for the performance of Developer?s obligations under
this Agreement, or Client?s use of the Deliverables as contemplated by
this Agreement; (e) each of the Deliverables will be Year 2000
compliant, meaning that their respective operation shall not
experience any abnormality, incorrect or invalid results, breakdown,
malfunction, or disruption of normal operation as a result of or
related to the passage of time or changing date values (including,
without limitation, dates from, into, and during the 20th and 21st
centuries, including leap years); (f) so much of each of the
Deliverables that the Developer creates shall not contain any
libelous, tortious, or unlawful material, or any formula or
instruction that is injurious to a person or property, or violate or
infringe any patent, trade secret, copyright, trademark, or other
proprietary rights of any kind of any third party anywhere in the
world; (g) Client?s exercise of any of the rights granted by the
Developer to the Client in and to any of the Deliverables under this
Agreement will not infringe or violate any copyright, patent,
trademark, trade secret or other personal or proprietary rights of any
kind of any third party anywhere in the world; and (h) Developer shall
not include in any Deliverables, or authorize the inclusion therein
of, any Trojan Horse, back door, time bomb, drop dead device, worm,
virus, or other code of any kind that may disable, erase, display any
unauthorized message, or otherwise impair such Site or any hardware on
which it operates.
6.2 Client?s Representations and Warranties: Client represents and
warrants that: (a) Client has all rights and authority necessary to
enter into this Agreement and carry out its terms and conditions, and
such execution and performance will not violate any agreement or other
arrangement with any third party; (b) Client owns all rights, or has
secured all licenses, sublicenses, assignments, permissions, waivers,
releases, consents or other rights and clearances from third parties
(including, without limitation, any Client Content or any of Client?s
Marks incorporated in any Deliverables) that are necessary for the
performance of Developer?s obligations under this Agreement, or
Developer?s exercise of any rights granted hereunder; and (c)
Developer?s exercise of any of the rights granted by the Client to the
Developer in and to any of the materials supplied by Client or
Client?s Marks under any applicable provision of this Agreement will
not infringe or violate any copyright, patent, trademark, trade secret
or other personal or proprietary rights of any kind of any third party
anywhere in the world.
6.3 Indemnification.
(i) Developer will hold harmless and indemnify the Client, and its
directors, officers, employees and agents, from and against any
demand, claim, suit, action, proceeding, cost, damages, loss and
expenses, including reasonable attorneys? fees, arising from any
third-party claims based upon or arising out of (a) any matter that,
if true, would result in a breach of Developer?s warranties or
representations herein contained, or (b) the gross negligence or
willful misconduct of the Developer.
(ii) Client will hold harmless and indemnify the Developer, and its
directors, officers, employees and agents, from and against any
demand, claim, suit, action, proceeding, cost, damages, loss and
expenses, including reasonable attorneys? fees, arising from any
third-party claims for which the Developer does not have an obligation
to indemnify Client under paragraph 6.3.1, and which is based upon or
arises out of (a) any matter that, if true, would result in a breach
of Client?s warranties or representations herein contained, or (b) the
gross negligence or willful misconduct of the Client.
(iii) If either party (the ?Indemnified Party?) receives a claim that
it believes, in good faith, is or could be subject to indemnification
hereunder by the other party (the ?Indemnifying Party?), the
Indemnified Party will provide prompt written notice of such claim
(the ?Claim?) to the Indemnifying Party. The Client will have the
right to assume and control the defense and settlement of any Claim
relating in any way to any Text, Instructor?s Manual, New Content Work
and/or any Deliverable, regardless of who is the Indemnifying Party
with respect to such Claim, and until such Claim has been settled or
withdrawn, the Client may withhold any sums due Developer under this
Agreement or otherwise. Developer will cooperate with the Client and
provide reasonable assistance in defending against any such Claim at
the expense of the applicable Indemnifying Party, and Developer also
may, at its own expense, participate in the defense thereof if it so
chooses. With respect to any other Claim, the applicable Indemnifying
Party shall have the right to assume and control the defense and
settlement thereof, the Indemnified Party will provide reasonable
assistance in defending against any such Claim at the expense of the
Indemnifying Party, and the Indemnified Party may, at its own expense,
participate in the defense thereof if it so chooses. Notwithstanding
anything to the contrary in this paragraph 6.3, however, any
settlement of any Claim intended to bind the party not controlling the
defense and settlement of such Claim shall not be final without the
written consent of such party.
(iv) The warranties and indemnities contained in this paragraph will
survive termination of this Agreement.
(v) Notwithstanding the forgoing, Developer shall have no
responsibility for claims arising from (i) modifications of the System
or any components thereof or any documents related thereto made by
Client if such claim would not have arisen but for such modifications,
or (ii) combination or use of the System with Clients other system if
such claim would not have arisen but for such combination or use.
6.4 Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS OR
IMPLIED, REGARDING THE SYSTEM AND RELATED DOCUMENTATION, INCLUDING
WITHOUT LIMITATION AS TO THEIR MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE.
6.5 Limitation on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE
DAMAGES, OR LOST OR IMPUTED PROFITS AND/OR ROYALTIES OR OTHER ECONOMIC
LOSS ARISING FROM A BREACH OR ALLEGED BREACH UNDER THIS AGREEMENT OR
ITS TERMINATION OR EXPIRATION, WHETHER LIABILITY IS ASSERTED IN
CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING STRICT
LIABILITY AND NEGLIGENCE). THIS LIMITATION WILL APPLY WHETHER OR NOT
EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES.
7. CONFIDENTIALITY
7.1 Confidential Information. During the term of this Agreement,
either party may receive or have access to technical information, as
well as information about product plans and strategies, promotions,
customers and related non-technical business information which the
disclosing party considers to be confidential ("Confidential
Information"). In event such information is disclosed, the parties
shall first agree to disclose and receive such information in
confidence. If then disclosed, the information shall (i) be marked as
confidential at the time of disclosure, or (ii) if disclosed orally
but stated to be confidential, be designated as confidential in
writing by the disclosing party summarizing the Confidential
Information disclosed and sent to the receiving party within a
reasonable period of time after such oral disclosure. Notwithstanding
any provision to the contrary, all source code provided by Developer
or Client to the other, and all business information with respect to
any unpublished Developer or Client products, are deemed Confidential
Information for the purposes of this Section 7
7.2 Nondisclosure. Confidential Information may be used by the
receiving party only with respect to performance of its obligations
under this Agreement, and only by those employees/associates of the
receiving party who have a need to know such information for the
purposes related to this Agreement. The receiving party shall protect
the Confidential Information of the disclosing party by using the same
degree of care (but no less than a reasonable degree of care) to
prevent the unauthorized use, dissemination or publication of such
Confidential Information, as the receiving party uses to protect its
own confidential information of like nature. The receiving party's
obligation under this Section 7 shall be for a period of three (_99_)
years after the date of disclosure.
7.3 The foregoing obligation shall not apply to any information, which
is (i) already known by the receiving party prior to disclosure; (ii)
publicly available through no fault of the receiving party; (iii)
rightfully received from a third party without a duty of
confidentially (iv) disclosed by the disclosing party to a third party
without a duty of confidentially on such third party; (v)
independently developed by the receiving party prior to or independent
of the disclosure; (vi) disclosed under operation of law; or (vii)
disclosed by the receiving party with the disclosing party's prior
written approval.
8. TERM AND TERMINATION
8.1 Termination for Breach: Either Party may terminate this Agreement
by written notice to the other party if, the other party breaches any
material provision of this Agreement and such breach is not cured
within thirty (30) days after receipt of written notice thereof from
the non-breaching party. Once final deliverable has been received by
the Client the contract is not void.
8.2 Effect of Termination.
a. Upon any termination or expiration of this Agreement, the parties
shall each promptly return to the other any and all copies of any and
all materials either party provided to the other in connection with
this Agreement that relate in any way to the System.
b. Termination of this Agreement shall not affect the rights and
obligations of the parties accrued prior to such termination. It shall
be Client?s sole liability to Developer to make the payment of
invoices for Services rendered prior to the termination and shall
reimburse the Developer for all reasonable expenses incurred by
Developer, and approved by Client, but not paid, as of such
termination with respect to any Deliverables.
c. Survival. Notwithstanding any termination of this Agreement, the
following provisions shall survive for the period specified therein,
if any; Sections 5.1 and 5.2 (Ownership and Licenses); Section 6
(Warranties and Indemnification); Section 7 (Confidential
Information); and Section 11(Other Provisions).
9. GOVERNING LAW
This Agreement is made under and shall be construed in accordance with
the law of the State of Texas, without reference to conflict of laws
principles. Both parties agree to submit to jurisdiction in State of
Texas and further agree that any cause of action arising under this
Agreement may be brought in a court in Harris County, Texas.
10. OTHER PROVISIONS
10.1 Publicity. Each party agrees not to publish or disclose the
existence or terms of this Agreement to any third party without the
prior written consent of the other except as required by law. In
particular, no press releases shall be made without the mutual written
consent of each party.
10.2 Notices : All notices and other communications required to be
sent or given hereunder ("Notice") will be in writing and will be duly
given and effective (i) if delivered in person or by reputable courier
service, upon such delivery; (ii) if sent by first class US mail, on
the fifth Business Day following its mailing, postage prepaid; (iii)
if sent by overnight mail, on the Business Day following its mailing;
(iv) if sent by electronic mail or email, on the day of receipt of
such transmittal provided that the printout from the sending machine
indicates that successful transmission occurred such that the
recipient would have received such Notice by 5 p.m., recipient?s local
time, on a Business Day at the recipient?s address shown as indicated
below (and if not so timely received, then on the next Business Day)
and provided further that a duplicate copy of such Notice is sent by
either first-class or overnight mail. Unless otherwise specified
Client?s and Developer?s addresses for Notices are set forth in
Exhibit D. Each party may change its address from time to time upon
ten (10) days prior Notice as set forth above.
10.3 Independent Contractors. The relationship of the parties under
this Agreement is that of independent contractors, and neither party
is an employee, agent, partner or joint venturer of the other.
10.4 No Assignment. Neither party may assign or transfer any of the
rights or responsibilities set forth herein, without the express
written consent of the other party (which consent shall not be
unreasonably withheld or delayed) and any purported attempt to do so
shall be deemed void. Notwithstanding the foregoing, such written
consent is not required in the event of a merger or sale of all or
substantially all of the assets of either party or change in the
ownership of either party, in which case this Agreement shall be
assigned to the surviving entity
10.5 Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, then
the remaining provisions will nevertheless remain in full force and
effect, and the parties will negotiate in good-faith a substitute,
valid and enforceable provision which most nearly effects the parties'
intent in entering into this Agreement.
10.6 Headings. The captions of and headings used in this Agreement are
for convenience of reference only and are not to be considered in any
way as material terms or be used to interpret the provisions of this
Agreement.
10.7 Client Acknowledgment. It is the long-standing practice of
Developer to serve multiple clients within industries, including those
with opposing economic interests. Developer is committed to
maintaining the confidentiality of Client's Confidential Information
in all such situations. Accordingly, subject to clause 5.2, Client
acknowledges the possibility and agrees that Developer may have
served, may currently be serving or may in the future serve other
companies whose interests are adverse to those of Client, including
parties with whom the Client (i) competes; (ii) has a commercial
relationship or potential commercial relationship (e.g., suppliers,
distributors); (iii) enters into competitive bidding situations; and
(iv) enters into or considers entering into merger, acquisition,
divestiture, alliance or joint venture transactions.
10.8 Modifications. This Agreement may only be modified only by a
writing signed by an authorized representative of each party.
10.9 Waiver. Neither party's failure to exercise any of its rights
hereunder shall constitute or be deemed a waiver or forfeiture of any
such rights.
10.11 Force Majeure. Non- performance of either party will be excused
to the extent that performance is rendered impossible by strike, fire,
flood, governmental acts or orders or restrictions, or other similar
reason where failure to perform is beyond the control and not caused
by the negligence of the non-performing party, provided that the
non-performing party gives prompt notice of such conditions to the
other party and makes all reasonable efforts to perform.
10.12 Export Control. Each party agrees to comply with all applicable
United States laws and regulations which may govern the export of
Software abroad, including the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce.
10.13 Entire Agreement. This document represents the entire agreement
between the parties as to the matter set forth herein and supersedes
all prior discussions or understandings between them.
10.14 Exhibits. Each Exhibit referred to in this Agreement is
incorporated in full in this Agreement whatever reference to it is
made:
Both parties as witnessed below agree to the above terms and conditions:
Client: _________________________________________________________
Title: _________________________________________________________
Date: ____________________________________________
Developer: ________________________________________________________
Title: President and CEO
Date: ___________________________________________________________ |
