These Standard Terms (these "Terms") are a part of the Development Agreement (the "Development Agreement") between Smash Dev Shop, LLC and the other party who has signed the Development Agreement. Terms used in these Terms are defined elsewhere in the Development Agreement unless defined in these Terms.
(a) Deliverables and Specifications. The operation, capabilities, performance, and other material characteristics of the Work are described in the Specifications.
(b) Cooperation. You agree to reasonably cooperate with us in our efforts to complete the Work, including providing materials that we reasonably request from you, such as photographs, and webpage content, and promptly responding to our inquiries and requests for direction.
(c) We will use our professional judgment. If any aspect of the Work or Deliverables is not described in detail in the Development Agreement, then we will determine how to proceed in our discretion. You may request that we change our approach on such items, however, we reserve the right to treat the requested change as Additional Work, as provided under the next Subsection.
(d) Additional Work. Promptly upon receiving your request for Additional Work, we will discuss with you the impact of the Additional Work on the Fees and Project Schedule. After that discussion, you may either elect to withdraw the proposed Additional Work, or agree in writing to an adjustment to the Project Schedule, the Specifications, Deliverables, and the Fees. We will use our reasonable judgment in delaying the Work until you have decided how to proceed with the Work following a request for Additional Work, and the Project Schedule will be extended by the length of that delay. Additional Work will be billed as described in the Development Agreement, plus expenses that we incur, unless otherwise agreed to in writing. If we agree to perform the Additional Work, then references in this Agreement to Work, Deliverables, Project Schedule, Specifications and Fees will be deemed to be modified to include a reference to the applicable Additional Work, and modified Specifications, Deliverables, Fees and Project Schedule.
(a) Schedule. We will notify you in writing if we determine that there will be a material delay in the Project Schedule. From time-to-time we may provide you with an updated Project Schedule to reflect changes to the anticipated timing of performing the Work and providing the Deliverables. If you do not respond to our requests within 3 business days, the Project Schedule will be extended by the length of the delay in performing the Work that results from your delay. We will use reasonable efforts to minimize the need for a delay.
(b) Delays beyond our control. The Work is both complicated and complex, and our performance of the Work may be affected by circumstances outside of our control or which we cannot reasonably have anticipated in developing the Project Schedule and the Specifications. Neither party will be held liable or at fault for delays, defaults, breaches, or any failures to perform that are caused by conditions beyond the parties' reasonable control, regardless of whether those conditions are due to an act of God or nature, government, or a private third party (each, a "Force Majeure").
(c) Notice of Delay. We will notify you in writing as soon as reasonably practicable if our performance of the Work is delayed by a Force Majeure. That notice will describe in reasonable detail the nature of the Force Majeure, how it has affected our performance of the Work, and our anticipated resolution of the Force Majeure.
(d) Effect of Force Majeure. All Force Majeure conditions which delay our performance of the Work will entitle us to an extension of the Project Schedule equal to the period of delay caused by the Force Majeure, or to any other period agreed to in writing.
(a) Testing. We will test each Deliverable to ensure that it conforms to the Specifications prior to delivery to you, using commercially reasonable methods unless otherwise provided in the Specifications. If we are unable to test the Deliverables in your production environment, and are unable without additional difficulty and expense to provide a suitable staging environment itself, then you agree to provide, at your expense, a readily-accessible staging environment in which we may test the Deliverables prior to delivery. If you provide your own production environment for the Work, as opposed to using a production environment managed by us, then we will consult with you or with your representative to assist in the configuration and preparation of the production environment. We are not responsible for issues that may arise as the result of the conditions of a production environment that we do not manage.
(b) Delivery and Publication. We will provide the Deliverables to you in accordance with the Specifications and as described on the Project Schedule. If we need to publish a deliverable to an app store, a web server, or a similar environment, we may do so at the same time that we provide the item to you. Delivery of each Deliverable will be complete when we notify you in writing that the Deliverable has been sent or otherwise posted.
(c) Acceptance of the Deliverables. Deliverables that comply with the Specifications when tested in an agreed-upon staging environment will be deemed to have been accepted. You agree to inspect and test all other Deliverables promptly upon receiving notice of delivery. The Deliverables will be deemed accepted by you unless you notify us in writing within 4 calendar days that the Deliverables do not conform to the Specifications. Your notice must include a detailed description of the particular reasons that you believe the Deliverables does not satisfy the Specifications, and must include a step-by-step description of the process that we may use to reproduce the identified error, failure, or other deviation from Specifications.
(d) Fixes and Re-testing. We will have 10 calendar days after receiving your notice to make and submit to you the changes that we determine are required to correct the error described in your notice. After we submit the changes to you, you will have an additional 4 calendar days to reexamine and retest the Deliverable. The process for acceptance and correction provided in Subsection 3(c) and (d) will apply to each Deliverable corrected under this Subsection.
(a) Taxes. We agree that we will pay all taxes and other amounts relating to the Work that we are legally obligated to pay. You agree that you will not withhold any taxes or other amount from the Fee.
(b) Expense Reimbursements. You agree to promptly reimburse us for all expenses that we incur in performing the Work, except for expenses that we agree to include in the Fee in the Development Agreement. We will notify you of all expenses that are individually in excess of $100.00 before we incur the expense, and will not incur the expense without your approval, or we may choose to incur the expense and pay it ourselves. If you do not approve an expense, then we may choose to pay the expense, or discuss alternatives with you until an agreement is reached on an acceptable solution. The Project Schedule will be extended by an amount of time equal to the delay in reaching an acceptable solution.
(c) Schedule of Payments. We will not be required to begin the Work until the first installment has been received, if applicable. We may choose to charge interest at a rate equal to the lesser of 3% per month or the maximum rate allowed by applicable law, on invoices that are more than 15 days past due. If any payment is more than 15 days past due, we may suspend the Work until all past-due invoices have been paid in full, including any interest.
(d) Support Fees and Trouble Shooting. Services for providing support, maintenance, and trouble-shooting after acceptance of the Deliverables will be performed on an hourly basis at our then current rates, and on an "as-available" basis, unless we enter into a separate agreement for ongoing support services. All such services will be billed in minimum increments of 0.5 hours.
(a) Your IP. We will have the right to use Your IP, and any other intellectual property that you provide to us, for the sole purpose of completing the Work and incorporating it into the Deliverables. You represent and warrant to us that Your IP, and any other intellectual property that you provide to us, is not infringing on the rights of any other person or entity, and does not otherwise violate the rights of any other person or entity.
(b) Third Party IP. In performing the Work and preparing the Deliverables, we may obtain intellectual property, including, but not limited to, plug-ins, templates, and other licensed software, from one or more third parties (collectively "Third Party IP"). We will use the Third Party IP in performing the Work and may incorporate the Third Party IP into the Deliverables. You agree that you will pay for all fees and expenses for the Third Party IP, except for amounts that we expressly identify as included within the Fee in the Development Agreement. We will assign to you all of our rights in and to the Third Party IP, except as limited by the terms of any applicable license or other agreement. Upon your request, we will inform you if the terms of any such license do not grant you the right to use the Third Party IP on a perpetual, royalty-free, worldwide basis. We are not obligated to pay any amount required for the continued use of Third Party IP. You will be responsible to maintain your rights to all such Third Party IP at your sole cost and expense. You acknowledge that you understand that the Deliverables may not work as intended without the Third Party IP.
(c) Your Rights. Upon final payment of all amounts due and payable to us under this Agreement, we hereby assign to you all of our right, title, and interest in and to all intellectual property incorporated into the Deliverables including, without limitation, all copyrights and trade secrets, but not including the Generic Work Tools. Upon final payment of all amounts due and payable to us under this Agreement, we hereby grant to you a non-exclusive, perpetual, assignable, sublicensable, royalty free, fully paid, irrevocable, worldwide license to use, and make copies of the Generic Work Product. You may make any modifications that you choose to the Generic Work Product without our permission and without any obligation to us.
(d) Our Rights in the Generic Work Product. Notwithstanding anything to the contrary in this Agreement, we will retain ownership Generic Work Product. "Generic Work Product" means all intellectual property that we create in performing the Work and creating the Deliverables (i) which can be used generally in software development; (ii) which is not of primary application to your business rather than being generally useful for businesses in multiple industries; or (iii) which the average consumer of your products and services could not identify as being unique to the Deliverables, when interacting with the Deliverables as intended. Periodically, we may provide you a written description of all Generic Work Product. If you do not object in writing to the treatment of the applicable item as Generic Work Product within 15 days after receiving such notice, the applicable item will be deemed to be Generic Work Product.
If this Agreement is terminated by either party before the Work has been completed, you will remain liable for the Fees and expenses attributable to Work performed through the termination date. If this Agreement is terminated before the Work is completed, you will not be entitled to any ownership in the Deliverables, except for Deliverables that are separately priced in the Development Agreement that have been paid for in full (including reimbursing applicable expenses and paying any additional amount relating to any Additional Work for those Deliverables).
During the Term and for 1 year afterwards, you agree that you will not directly or indirectly (i) cause or attempt to cause any of our employees to terminate or adversely change their relationship with us; (ii) cause or attempt to cause any of our independent contractors that performed any of the Work to terminate or adversely change their relationship with us; (iii) hire or otherwise engage any person who was employed by us during the Term; or (iv) hire or otherwise engage any person or entity that was an independent contractor for us and performed any part of the Work.
The parties acknowledge and agree that we have expended substantial resources in identifying, hiring and training developers and other personnel to perform the Work, and we would suffer substantial losses if you breach this Section. If you or any of your affiliates hire or engage any of our current or former employees or independent contractors whom you have come into contact with in connection with our performance of the Work for you prior to their termination of employment or services with us or within one year after the individual's last day of employment or performance of services for us, then you agree to pay us a fee equal to the greater of $15,000 or 20% multiplied by their annual salary or fees (based upon their most recent pay rate extended to a full year of work) which we paid the individual prior to the time that you or your affiliate hired or engaged them. The parties agree that the payment under this paragraph (1) is liquidated damages and is not a penalty; (2) as of the date of this Agreement, the amount is a reasonable estimate of the damages we would suffer on breach of this paragraph; and (3) otherwise determining the amount of actual damages would not be easily or readily determinable. obtaining an adequate remedy is inconvenient or impossible.
(a) Amendments. This Agreement may only be amended or modified in a writing signed by all of the parties. (b) Relationship of the Parties. The parties are solely independent contractors with respect to each other, and are not partners, joint ventures, and do not have any other form of relationship. (c) Waiver. No waiver shall be effective unless in writing signed by the waiving party. A waiver shall only be effective for the specific event specified in the waiver, and not for any subsequent circumstance. (d) No Assignment. You agree that you will not assign this Agreement or any part of it without our written consent, which will not be unreasonably withheld.
(e) Venue and Choice-of-Law. This Agreement will be governed by and interpreted according to the substantive law of the State of Kansas (without application of conflict of laws principles), and any disputes arising out of or in connection with this Agreement will be resolved in the state or federal courts situated in Sedgwick County, Kansas. You expressly consent to the personal jurisdiction of those courts over you, and agree that venue in Sedgwick County, Kansas, will not subject you to any undue hardship, injustice, or unfairness.
(f) Severability. Each provision of this Agreement shall be interpreted in a manner so as to be legal, valid and enforceable, if at all possible. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable (each a "Severed Provision") such Severed Provision shall be stricken from this Agreement and all other provisions of this Agreement shall remain in full force and effect. Each Severed Provision shall immediately be replaced by a provision as near in terms as possible under applicable law to the Severed Provision, so as to give full force and effect, as near as possible, to the original intent of the parties.
(g) Notices. Any notice required or permitted to be sent according to this Agreement will be deemed delivered if mailed, postage prepaid, by registered or certified mail, return receipt requested, or by email, to the addresses listed on Schedule A. Email will be effective one business day after transmission if receipt is confirmed by a reliable method, such as read receipt or a reply acknowledging receipt. Notices sent by mail as provided in this Subsection will be effective one business day after being sent. Both parties agree to send a read receipt or promptly provide a reply confirming receipt when requested.
(h) Joint Drafting. This Agreement is the result of joint drafting and negotiation, and will not be interpreted in favor of or against either party as drafter.
(i) Interpretation. The headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. All terms and words used in this Agreement, regardless of numbers and genders in which they are used, shall be deemed to include singular or plural and all genders as the context or sense of this Agreement or any section or clause herein may require.
(j) No Consequential Damages. ASIDE FROM THE EXPRESS OBLIGATIONS AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER SIMILAR DAMAGES, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY) RELATING TO THE WORK, THE DELIVERABLES OR THIS AGREEMENT.
(k) Mutual Indemnification. Each party agrees to indemnify, defend and hold each other (and each other's agents and employees) harmless from and against all losses, expenses (including reasonable attorneys' fees) and damages (except losses and damages waived under this Agreement), of whatever nature, arising out of, connected with, or resulting from the (i) material breach of the terms and provisions of this Agreement by each other or any of each other's employees, agents or representatives; or (ii) negligent or willful acts or omissions of each other or any of each other's employees, agents or representatives.
(l) Mutual Representations and Warranties. Each party represents and warrants to the other party that (i) it is duly organized as the type of entity identified in the introductory paragraph of this Agreement and is in good standing under the laws of the jurisdiction where it is organized, (ii) it has authorized this Agreement, (iii) this Agreement will create a valid and binding obligation upon it enforceable in accordance with its terms, (iv) it has carefully reviewed and understands the provisions of this Agreement and the attachments to it, including the Specifications, and (v) it will not, by entering into or performing this Agreement, violate any other agreement or other legal obligation to which it is subject.
(m) Disclaimer of Other Warranties. We will use qualified employees or independent contractors to fulfill our obligations under this Agreement and will use commercially reasonable efforts to produce a reliable and workmanlike Deliverables for you. However, you agree that information technology is complex and complicated, and that the reliable performance of any piece of software, whether hosted in the cloud or residing on a local device, necessarily depends upon circumstances and conditions that are outside of our control. Accordingly, the Work is provided "as is," "as available," "with all faults," and without warranties except as expressly provided in this Agreement. This disclaimer of warranties includes, without limitation and to the maximum extent allowed by law, the warranties of title, security, accuracy, merchantability, fitness for a particular purpose, non-infringement, availability, or uninterrupted access. Further, we disclaim, and you hereby waive, any and all claims arising out of or related to access to or use of the Deliverables, by yourself or by any third party. In no event will our liability under this Agreement exceed the Fees you have actually paid to us within the 12 months immediately preceding the date you make the claim to us in writing. Your exclusive remedy for our breach of this Agreement, is that, at our option, we will either refund to you the Fees you actually paid attributable to the defective Work or Deliverables, or we will reperform the defective Work or Deliverables in the manner required by this Agreement as soon as reasonably practicable.
(n) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, will create any rights, remedies, liabilities or claims of any kind for anyone other than you and us, and there are no third party beneficiaries of this Agreement.