Agile Software Design &
This Agile Software Design & Development Agreement (the “Agreement”) is made by and between Neonroots, LLC, a California limited liability company (“Neonroots”) and [Client Entity Name], a [State of Incorporation or Organization] [corporation/limited liability company] (“Client”) as of [Month] [DD], [Year] (the “Effective Date”). For good and valuable consideration, the receipt of which is hereby acknowledged, Neonroots and Client (collectively the “Parties” and individually generically referred to as a “Party”) hereby agree as follows:
1. Service Sprints. Neonroots will provide the software design and/or development services (the “Services”) requested by Client from time to time during the Term (as defined below) in weekly sprints. Unless otherwise agreed in writing (email suffices), each Sprint will commence on Monday morning at 9:00 a.m. Pacific Time and conclude at 5:00 p.m. Pacific Time Friday evening of the same week (each a “Sprint”). The Parties will collectively determine the particular Services to be conducted during each Sprint at or prior to the commencement of each Sprint, and the number of Neonroots’ employees and/or contractors (each a “Producer”) required to perform such Services. The particular Services to be provided during the initial set of Sprints is described on the Statement of Work (the “Statement”) attached hereto as Attachment I and incorporated herein by reference as though fully set forth. The Parties may, but are not required to, enter into additional Statements to specify further Services and sets of Sprints to be performed, and any particulars applicable thereto.
2. Sprint Fees. The fee for each Sprint will be tied to the number of fulltime equivalent (“FTE”) Personnel required for the Sprint. For purposes of this Agreement, FTE equals approximately [XX] hours per Sprint. Unless otherwise agreed to in writing (email suffices) by the Parties with respect to a particular Sprint or set of Sprints, the applicable fee will be $[X,XXX] for each Neonroots’ Producer assigned to the Sprint. Except as otherwise agreed in writing by the Parties (email suffices), fees for each Sprint are due in advance, upon Client’s receipt of Neonroots’ invoice therefore.
3. Relationship of the Parties. The Parties are not partners or engaged in a joint venture, and neither Neonroots nor its Producers are Client’s employees. Neonroots’ Producers are not entitled to any Client fringe benefits, and Client will not withhold any taxes or make any deductions from its payments to Neonroots hereunder. Neonroots will provide Client with an Internal Revenue Service (“IRS”) Form W-9 and Client will issue Neonroots IRS Forms 1099 as appropriate.
4. Excluded Services. Unless otherwise agreed in writing by Neonroots, Neonroots will not be providing search engine optimization, hosting, social media marketing, photography, copy writing, graphic image design, data entry, or support and maintenance services.
5. Rights to Deliverables. The “Deliverables” (as may be described in any applicable Statement or other written agreements between the Parties) may include “Work Product”, “Elements” and “Third Party Tools” (each as defined below). Subject to Neonroots’ receipt of payment for a particular Sprint, Neonroots (a) assigns to Client all of Neonroots’ right, title and interest in and to the designs, applications, and software created by Neonroots for Client in connection with the Services (the “Work Product”) and (b) grants to Client a nonexclusive, royalty-free, worldwide, unlimited, right and license to display, copy, modify, and generally utilize Neonroots’ preexisting software, scripts, frameworks, algorithms, modules, practices, designs and methodologies, and any improvements thereon not uniquely applicable to the Work Product (the “Elements”).
6. Third Party Tools. Client understands and agrees that certain third party tools (the “Third Party Tools”), such as open source software, application programming interfaces, and font software packages, may be incorporated within or form part of the Deliverables, and that such third party tools are subject to the terms of the applicable license (including the warranties and/or disclaimers therein), and are not owned by Client or Neonroots; provided, that, Neonroots will obtain Client’s prior written permission prior to incorporating any Third Party Tools that either (a) are subject to an open source license that either (i) is “commercially restrictive” or contains a “share alike” (or “copyleft”) requirement (as such terms are commonly understood in the software development industry), (b) require that Client enter into any separate license or agreement with a third party, or (c) require Client to pay any fee to a third party.
7. Promotional Rights. Neonroots reserves the right to utilize the Work Product for promotional and marketing purposes, including on Neonroots’ Internet website(s) and social media pages, and Client grants to Neonroots the right and license to utilize Client’s name, logo(s) and trademark(s) in connection with such promotional and marketing efforts.
8. Term & Termination. This Agreement is effective as of the date last executed below, and will continue in effect for a period of one (1) year; provided that this Agreement may be earlier terminated for an uncured material breach (including unreasonable delay) after written notice thereof and at least ten (10) days opportunity to cure.
9. Warranties. Each party represents and warrants to the other that: (a) it has the right and authority to enter into this Agreement and perform its obligations hereunder; (b) that it is not bound by any order or contract that would prohibit or limit its ability to do so; and (c) that, to its knowledge, the content, materials, specifications and directions provided by such party does not infringe upon the proprietary rights of any third party. Neonroots additionally represents and warrants to Client that it and its Producers will perform the Services in a professional and workmanlike manner, consistent with industry standards and any specifications agreed upon by the Parties in writing.
10. Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, THE PARTIES DISCLAIM ALL WARRANITES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICUALR PURPOSE OR MERCHANTABILITY. CLIENT UNDERSTANDS THAT NEONROOTS CANNOT GUARANTEE CONTINUOUS OR ERROR FREE OPERATION OF SOFTWARE.
11. Limitation on Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, NO MATTER THE CAUSE OF ACTION, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NEONROOTS’ LIABILITY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO NEONROOTS IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FILING OF THE CLAIM(S) AND/OR CAUSE(S) OF ACTION.
12. Confidentiality. Each party agrees to maintain in confidence, and not to disclose to any third party or use for its own purpose, the other party’s Confidential Information (as defined below). For purposes of this Agreement, “Confidential Information” means any information that is either (a) marked as “confidential” when provided to the recipient, or (b) should, at the time of receipt by the receiving party, reasonably be understood by such party to be confidential in nature.
13. Indemnity. Each party (the “Indemnifying Party” in each instance) will indemnify, defend and hold the other party (the “Indemnified Party” in each instance) harmless from and against any third party claims arising out of the Indemnifying Party’s breach of this Agreement (including the inaccuracy of any representation or warranty herein), negligence or willful misconduct (each a “Claim”); provided that (a) the Indemnified Party gives prompt written notice of the Claim; (b) the Indemnifying Party shall be entitled to control the defense and settlement of the Claim; and (c) the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with such defense and settlement.
14. Governing Law, Jurisdiction & Attorney’s Fees. The Courts sitting in the County of Los Angeles, State of California, shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby consents to the jurisdiction and venue thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California, exclusive of its choice of law principles. In the event of any dispute arising out of or relating to this Agreement, the substantially prevailing party shall be entitled to its reasonable expenses, expert fee’s, attorney’s fees, and costs.
15. Miscellaneous. This Agreement embodies the entire understanding between the parties concerning the subject matter hereof, and supersedes any and all prior negotiations, correspondence, understandings and agreements between. Any modifications or amendments to this Agreement must be in writing and must be acknowledged in writing as agreed by both Parties. The failure of a party to require performance by the party of any provision of this Agreement shall in no way affect the full right to require such performance at any time thereafter. This Agreement has been negotiated by the parties and their respective attorneys, and the language of this Agreement shall not be construed for or against either party. The headings are not part of the parties’ agreement. Should any provision of this Agreement be held unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to render it enforceable, or, if incapable of such modification, such provision shall be severed herefrom, and the remainder of this Agreement shall be enforced. This Agreement may be executed electronically and in counterparts.
In Witness Whereof, the Parties have executed this Agreement and make it effective as of the Effective Date set forth above.
Neonroots, LLC [Insert Client Name]
Statement of Work #1
This Statement of Work #1 (the “Statement”) is made by and between Neonroots, LLC, a California limited liability company (“Neonroots”) and [Client Entity Name], a [State of Incorporation or Organization] [corporation/limited liability company] (“Client”), pursuant to that certain Agile Software Design & Development Agreement between the Parties dated [Month] [DD], [Year] (the “Agreement”). Capitalized terms herein shall have the meaning ascribed in the Agreement unless otherwise indicated.
Services & Deliverables.
In Witness Whereof, the Parties have executed this Statement and make it effective as of the Effective Date.
Neonroots, LLC [Insert Client Name]