This Agreement is made and entered into as of [DATE OF AGREEMENT] (the “Effective Date”) between [LEGAL NAME OF COMPANY] (the “Company”), and the application development team of [NAME OF APP/TEAM NAME], individually comprised of [NAME OF DEV TEAM MEMBER], [NAME OF DEV TEAM MEMBER], [NAME OF DEV TEAM MEMBER] (the “Development Team”) (collectively the “Parties”).
WHEREAS, the Company and the Development Team desire to enter into an agreement, which will define respective rights and duties as to all services to be performed,
WHEREAS, the Parties represent and warrant that they are duly and fully authorized and empowered to enter into this Agreement, and that their performance of the obligations under this Agreement will not violate any agreement between either Party and any other person, firm or organization or any law or governmental regulation,
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the Parties hereto agree as follows:
1.0 Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth in this Section 1.
1.1 The “Agreement” means the entire content of this document, together with any accompanying appendices, duplicates, copies, exhibits, schedules or attachments hereto.
1.2 The “Content” means any and all materials, lists, formulas, algorithms, systems, and any other information, proprietary or otherwise, owned or controlled by the Company at the time of the Effective Date and provided to the Development Team for the purposes of this Agreement.
1.3 The “Intellectual Property” means any and all patents, copyrights, trademarks and trade secrets, and registration of, applications to apply for and priority rights based on, the foregoing, owned, licensed or otherwise controlled by the Company at the time of the Effective Date, related to the Content, that are necessary or useful for the development, manufacture or use of the Application.
1.4 The “Application” means any and all works, goods, services or other work products developed by, or commissioned by, the Development Team, under this Agreement and potentially incorporating and/or utilizing the Content and/or the Intellectual Property.
2.0 Scope of License.
2.1 Beginning on the Effective Date, and remaining in effect for the Term of this Agreement, the Company hereby grants to the Development Team, a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the Content and the Intellectual Property provided by the Company as it sees fit as part of the Application.
2.2 Nothing in this Agreement shall be construed (expressly or by implication) as granting or conveying to the Development Team, or as otherwise creating, any licenses or other rights or interests in or to any of the Content and/or the Intellectual Property owned or controlled by the Company other than the specific licenses to the Content and the Intellectual Property that are expressly granted under this Agreement.
3.0 Ownership Rights.
3.1 The Development Team shall retain sole and exclusive ownership of all rights, title and interest in and to the Application and any infrastructure, code, designs, written content or other materials created in connection with the Application.
3.2 Upon termination of this Agreement, any and all rights to the Content and the Intellectual Property shall revert back to the Company. The Development team shall have no future claim to the Content and the Intellectual Property after termination of this Agreement.
3.3 The Company shall be solely responsible, at its own expense, for all aspects of the prosecution, maintenance, enforcement and defense of all applications and registrations that are included in the Intellectual Property. The Company’s rights and responsibilities in that regard shall include sole and final decision making authority with respect to all such matters (as determined by the Company in his or her sole discretion).
3.4 The Company is under no obligation to notify the Development Team of any third party actions which may constitute infringement of the Intellectual Property, or if any third party initiates actions seeking to invalidate or contest the enforceability or validity of any of the Intellectual Property, unless otherwise specified herein.
4.1 The Company shall receive no monetary or equitable compensation from the Development Team in exchange for the license set out in this Agreement.
5.0 Confidential Information
5.1 The Parties understand and agree that in connection with the negotiation and performance of this Agreement, each Party may have had or have access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other Party, including, but not limited to, trade secrets and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each Party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all Confidential Information of the other Party in confidence and will protect the Confidential Information with the same degree of care as each Party uses to protect its own Confidential Information of like nature. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving or its representatives); (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or under any federal or state law. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures. The Confidential Information will not, without the prior written consent of the other Party, be disclosed to any third party, except that the receiving Party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents and representatives on a need-to-know basis, or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving Party is required to disclose such Confidential Information under this Section, the receiving party shall promptly notify the disclosing Party of such pending disclosure and consult with the disclosing Party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Neither Party shall use any Confidential Information received from the other Party except as may be necessary in its performance under this Agreement. The Parties acknowledge that unauthorized use by a Party of the other Party’s Confidential Information will diminish the value of such information and that breach of this obligation may cause irreparable harm and entitle the non-breaching Party to seek injunctive relief to protect its interest herein, in addition to any other monetary or other remedies it may be entitled to hereunder.
6.1 The Company shall not be responsible for any costs incurred by the Development Team in association with the development of the Application.
6.2 The Development Team shall not be responsible for any costs incurred by the Company in association with the enforcement, maintenance or upkeep of the Intellectual Property and the Content.
6.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
7.0 Disclaimer of Warranty.
7.1 THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. NEITHER PARTY MAKES ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY PROVIDES NO WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
8.0 Duration, Scope and Severability of Agreement.
8.1 This Agreement shall take effect immediately, and shall remain in full force and effect for [LENGTH OF LICENSE] days from the Effective Date (the “Term”), ending on [DATE OF TERMINATION], or until terminated pursuant to this Section 10 of the Agreement.
8.2 The Company may terminate this Agreement for any reason upon ten (10) days written notice to the Development Team. Either Party may terminate this Agreement for cause immediately upon notice to the breaching Party.
8.3 This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
8.4 This Agreement may be amended only by written agreement duly executed by an authorized representative of each Party.
8.5 If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the Parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
8.6 No modifications to this Agreement shall be binding upon the either Party without the express written consent of the Parties.
8.7 This Agreement shall not be assigned by either Party without the express consent of the Parties.
9.0 Governing Law and Jurisdiction.
9.1 This Agreement shall be governed by and construed in accordance with the laws of the State of [JURISDICTION STATE] without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either Party arising out of this Agreement shall only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of [JURISDICTION STATE]. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN THE STATE OF [JURISDICTION STATE].
10.0 Waiver of Rights.
10.1 A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have each executed this agreement as of the Effective Date.