SOFTWARE DEVELOPMENT SERVICES TERMS
Revised: July 10, 2024
These Software Development Services Terms (referred to herein as the “Agreement”) constitute a legally bindingagreement by and between Specode ("Developer”), a Wyoming corporation with offices at 30 N Gould St, Suite R,Sheridan, WY 82801, and the company (the “Company”) identified in the duly execute order form (the “OrderForm”), and is hereby entered into and made effective thereby as of the effective date indicated on the Order Form(the “Effective Date”). Developer and Company may be referred throughout the Agreement individually as “Party”or together as “Parties”. In consideration of the promises and mutual covenants herein, the Parties agree as follows:
Company’s execution of one or more Order Forms that incorporate this Agreement by reference indicatesCompany’s acknowledgement and acceptance of the terms herein. As used herein, the term “Agreement” shallinclude all Order Forms, exhibits, policies, schedules, and documents incorporated herein by reference.
1. DEFINITIONS
Capitalized terms within this Agreement shall have the meanings set forth below.
1.1 “Developed Code” means the source code, object code, libraries, programs, algorithms, test scripts, testresults, and other works created, derived, or otherwise produced by Developer pursuant to thisAgreement and the Order Form.
1.2 “Intellectual Property Rights” means patent rights (including patent applications and disclosures),copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized inany country or jurisdiction in the world.
2. DEVELOPMENT SERVICES
2.1 Services. Pursuant to the terms of this Agreement, Developer shall provide the software developmentand consulting services (“Services”) described in the Order Form. Except as expressly provided in an OrderForm, the Services shall be performed at Developer’s principal offices.
2.2 Standard of Services. Developer shall perform the Services in a professional manner and shall usecommercially reasonable efforts to meet the descriptions, any specifications, and any time schedule forthe completion of such Services.
2.3 Deliverables. The Services includes the creation and delivery of materials, products, and reports to bedelivered to Company per the terms of the Order Form, including but not limited to Developed Code(collectively, the “Deliverables”).
2.4 Open Source Software. Nothing herein shall restrict Developer from incorporating, deriving from, orotherwise using any open source or otherwise publicly available software. Company shall not modify ordelete any copyright notices or license text included as comments in open source software used in theprovision of the Services.
2.5 Manner and Means. Developer shall control the manner and the means by which the Services areperformed. Except as otherwise provided in this Agreement, the Developer will have full control overworking time, methods, and decision making in relation to provision of the Services in accordance withthe Agreement. The Developer will work autonomously and not at the direction of Company. However,the Developer will be responsive to the reasonable needs and concerns of Company.
Developer shall perform the services required by this Agreement at a location of Developer’s choice andat such times as Developer shall determine.
Company warrants that the Services are outside the usual course of Company’s business, and Developeris customarily engaged in an independently established business offering the same type of services as thatare involved in the Services.
3. PAYMENT TERMS AND TAXES.
3.1 Compensation. In consideration for the Services provided pursuant to this Agreement and described inthe Order Form, Company shall pay Developer the fees as outlined in that Order Form.
3.2 Taxes. The fees payable under this Agreement shall not include local, state, or federal sales, use, valueadded, excise or personal property or other similar taxes or duties and any such taxes shall be assumedand paid by Company except those taxes based on the net income of Developer.
4. OWNERSHIP, WARRANTY, AND INDEMNITY
4.1 Ownership of Deliverables. To the extent the Deliverables include materials subject to copyright, subjectto Company’s adherence to all terms of this Agreement, Developer agrees that the Deliverables are“works made for hire” as that term is defined under U.S. and other applicable copyright law.
Subject to Company’s adherence to all terms of this Agreement, Company shall own and hereby does ownall worldwide right, title, and interest in and to the Deliverables and all intellectual property rights therein,including but not limited to all copyright rights, patent rights, design rights, rights of manufacture, andrights to sell and offer to sell.
Notwithstanding the foregoing, with respect to “Pre-existing Code” (as that term is defined below),Developer shall continue to own all Pre-existing Code and all intellectual property rights therein, andhereby grants to Company a non-exclusive, limited license to use Pre-existing Code, solely as necessaryto make any Deliverables operable. Pre-existing Code shall be the Confidential Information of Developer,and Company shall not distribute or otherwise reveal the Pre-existing Code to any third-party. Companyshall not create derivative works from the Pre-existing Code.
“Pre-existing Code” means all code, algorithms, software, code snippets, and portions of algorithms thatare incorporated into the Developed Code by Developer, that: a.) are in existence prior to thedevelopment of the Developed Code within which it is incorporated; and/or b.) are not developedspecifically to meet obligations contained within this Agreement or an Order Form. Pre-existing Code indelivered source code shall be delineated as such via comments. Company shall not modify or delete anycopyright notices or license text included as comments in Pre-existing Code.
4.2 Representations and Warranties. The Developer represents and warrants that it has full power andauthority to enter into this Agreement. Developer hereby disclaims any warranties not expressly statedherein, including without limitation any implied warranties of merchantability, fitness for a particularpurpose, and non-infringement.
4.3 Company Warranties. Company represents and warrants that it has full power and authority to enter intothis Agreement. Company warrants that any work product developed by Developer pursuant to thisAgreement, and any use, distribution, marketing, sale, display, and/or offering thereof, shall adhere to allapplicable laws and regulations. As between Company and Developer, Company shall be solelyresponsible for ensuring that no applicable laws or regulations are violated by the creation of the workproduct developed pursuant to this Agreement or the use, distribution, marketing, sale, display, and/oroffering thereof.
4.4 No High Risk Use. Work product developed by Developer pursuant to this Agreement shall not be usedin controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, lifesupport systems, implantable medical equipment, motor vehicles, weaponry systems, or any otherscenario where the failure or malfunction of the work product would result in death, personal injury, orsevere physical or environmental damage (“High Risk Use”).
5. CONFIDENTIAL INFORMATION.
5.1 Protection of Confidential Information. Each Party acknowledges that Confidential Information may bedisclosed to the other Party during the course of this Agreement. Each Party agrees that it will takereasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietaryinformation to prevent the duplication or disclosure of Confidential Information of the other Party, otherthan in the manner and to the extent expressly permitted by this Agreement; that it will not discloseConfidential Information to any third-party; and that it shall use Confidential Information solely infurtherance of the rights and obligations of this Agreement. Each Party agrees to notify the other Partypromptly in the event of any breach of its security under conditions in which it would appear thatConfidential Information of the other Party was compromised or exposed. Each Party shall, upon requestfrom the other Party, take reasonable steps to recover any compromised or lost Confidential Information.Notwithstanding the foregoing, the Party receiving Confidential Information may disclose it pursuant toany statutory or regulatory authority or court order, provided the disclosing party thereof is given promptprior written notice of such requirement, if legally permitted, and the scope of such disclosure is limitedto the extent possible; provided further, the receiving Party shall temporarily delay disclosure if and tothe extent practicable to provide the disclosing Party with an opportunity to seek a protective order tolimit or prevent the disclosure. The obligations within this Section 5 shall survive the termination orexpiration of the Agreement for ten (10) years. Notwithstanding the foregoing, with respect to anyConfidential Information that qualifies as “trade secret” under applicable law, the obligations of thisSection 5 shall continue in effect until such Confidential Information no longer qualifies as “trade secret”.
5.2 Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” meansany tangible or intangible information relating to or disclosed in the course of performing the Agreementthat is marked or designated as confidential by the disclosing Party, including, without limitation, designs,specifications, routines, protocols, formulas, source codes, technical processes, unpublished financialinformation, product and business plans, projections, customer information, vendor information, andemployee information. “Confidential Information” does not include information that i.) becomes publiclyknown through no fault of the receiving Party; ii.) is lawfully received from a third-party not bound byconfidentiality obligations; iii.) is independently developed by a Party at its own expense or under contractwith third parties without using any Confidential Information of the other Party; or iv.) was known by thereceiving Party prior to its disclosure thereto by the disclosing Party. Pre-existing Code shall be theConfidential Information of Developer.
6. TERM AND TERMINATION.
6.1 Term of Agreement. This Agreement shall be effective as of the Effective Date and shall continue for theduration Services are being provided per any Order Form, until this Agreement is terminated per the termsherein; or all Order Forms are terminated per the terms therein.
6.2 Termination for Convenience. This Agreement is terminable by either party at any time, with or withoutcause, effective upon thirty (30) days advance written notice to the other party. No fees shall be refundedupon termination pursuant to this section. Should termination by Developer pursuant to this sectionresult in Company receiving a partial month’s service at the end of the contract term, the fees for saidpartial month shall be prorated.
6.3 Termination for Breach. Either Party may terminate this Agreement upon the other Party’s failure to curea material breach of its terms within ten (10) days of receiving written notice thereof from the nonbreaching Party.
6.4 Obligations Upon Termination. Upon any termination of this Agreement, the Parties shall return to eachother any and all Confidential Information and any and all equipment, documents and materials, includingall copies thereof, which it received from the other Party in connection with this Agreement; provided,however, that Company may retain all Deliverables completed prior to the date of termination and anywork in progress on Deliverables, up to the date of termination. Company shall pay Developer for allServices rendered prior to the date of termination.
6.5 Remedies for Breach of Agreement. If termination is the result of a material breach by a Party, the nonbreaching Party shall be entitled to pursue any and all rights and remedies it has under law.
6.6 Survival Provisions. Termination of the Agreement shall not relieve either Party from its continuingobligation to protect Confidential Information and proprietary rights of the other Party. In addition, therights and obligations of the Parties under Sections 3, 4, 5, 6, and 7, as well as the definitions of anycapitalized terms therein, shall survive the expiration or termination of this Agreement.
6.7 Non-Interference. Company agrees that, during the term of this Agreement and for a period of one (1)year thereafter, it will not, directly or indirectly, cause or attempt to cause any customer or vendor ofDeveloper to terminate, breach, or reduce its contractual relationship with Developer.Company acknowledges that this Section
6.7 is necessary to protect the legitimate business interests ofDeveloper and is reasonable in scope and duration.6.8 Non-Solicit. Company agrees that, during the term of this Agreement and for a period of one (1) yearthereafter, it will not, directly or indirectly, solicit, hire, employ, engage, or attempt to solicit, hire, employ,or engage any contractor or employee of Developer who has provided services to Company or otherwisecome into contact with Company in connection with this Agreement, without the prior written consentof Developer. This restriction applies to any contractor or employee who is engaged by Developer at anytime during the term of this Agreement.Company acknowledges that this Section
6.8 Non-Solicit. Company agrees that, during the term of this Agreement and for a period of one (1) yearthereafter, it will not, directly or indirectly, solicit, hire, employ, engage, or attempt to solicit, hire, employ,or engage any contractor or employee of Developer who has provided services to Company or otherwisecome into contact with Company in connection with this Agreement, without the prior written consentof Developer. This restriction applies to any contractor or employee who is engaged by Developer at anytime during the term of this Agreement.
Company acknowledges that this Section 6.8 is necessary to protect the legitimate business interests ofDeveloper, is reasonable in scope and duration, and breaching this Section 6.8 would necessarily causeCompany to breach its confidentiality obligations in Section 5.
7. GENERAL.
7.1 Liquidated Damages. Company acknowledges that a breach of Section 6.7 or 6.8 above will result insignificant damages to Developer, but by their nature such damages are difficult to ascertain. Accordingly,upon any such breach, Company shall pay to Developer liquidated damages in the amount of $30,000USD per occurrence, due and payable immediately upon such occurrence. Liquidated damages are notintended to be a penalty and are solely intended to compensate for damages.
7.2 Liability Limits. In no event shall Developer, its affiliates, it suppliers, or any of their officers, directors,employees, agents, representatives, information providers, or licensors, be liable for any consequential,incidental, direct, indirect, special, punitive, or other damages (including, without limitation, damages forloss of business profits, business interruption, loss of business information, or other pecuniary loss) arisingout of or related to the provision of the Services or the use of any Deliverables, even if Developer hasbeen advised of the possibility of such damages. Notwithstanding anything contained herein to thecontrary, Developer’s cumulative liability to Company relating to or arising from this Agreement, theServices, or the use of the Deliverables shall not exceed the total amount paid by Company to Developerpursuant to this Agreement during the three (3) month period preceding the action giving rise to theliability.
7.3 Indemnity. Company agrees to indemnify, defend, and hold Developer and its affiliates (the “IndemnifiedParties”) free and harmless from all claims, demands, losses, costs, expenses, obligations, liabilities,damages, recoveries, and deficiencies, including interest, penalties, attorneys’ fees, and costs, resultingfrom or related to any breach of any representation or term contained within this Agreement byCompany.
7.4 Relationship Between Parties. Neither Party shall be deemed to be an employee, agent or partner of theother in connection with this Agreement. Neither Party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of the other Party. The Partiesshall be and remain independent contractors with respect to this Agreement.
7.5 Governing Law. This Agreement shall in all respects be interpreted, construed in accordance with andgoverned by the laws of the State of California without regard to its conflict of law rules. The Partiesspecifically exclude the application of the 1980 United Nations Convention on Contracts for theInternational Sale of Goods, if otherwise applicable.
7.6 Dispute Resolution. In the event a dispute arises out of or in connection with this Agreement, the Partieswill attempt to resolve the dispute through good faith negotiations. If the dispute is not resolved within30 days, then all outstanding issues may be submitted to mediation. The parties will mutually select amediator. If they fail to do so within 15 days, then either party may submit a mediation demand to JAMSOrange County for mediation under the JAMS rules. If mediation is not successful in resolving the entiredispute, any outstanding issues will be submitted to final and binding arbitration with JAMS under theJAMS rules. The arbitrator's award will be final, and judgment may be entered upon it by any court havingjurisdiction within Orange County, CA.
7.7 Venue and Jurisdiction Provisions. With respect to any dispute that cannot be resolved in accordancewith the dispute resolution provision above, the Parties agree that the sole and exclusive venue andjurisdiction for any such action shall be in a court of competent jurisdiction in Orange County, California.The Parties agree that the above referenced courts shall have personal and exclusive jurisdiction over theParties for any dispute arising out of this Agreement.
7.8 Severability. In the event that any one or more of the provisions of this Agreement is for any reason heldto be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect the otherprovisions of this Agreement, which shall remain in full force and effect.
7.9 Force Majeure. Except with respect to the payment of fees due hereunder, neither Party will be liable forany failure to perform due to unforeseen circumstances or causes beyond such Party’s reasonable control,including, without limitation, acts of God, war, riot, acts of civil or military authorities, delay in delivery byDeveloper’s vendors, fire, flood, accident, strikes, inability to secure communication or transportationfacilities or labor or materials. In the event of a force majeure event, such Party’s time for delivery orother performance will be extended for a period equal to the duration of the delay caused thereby.
7.10 Entire Agreement. This Agreement is the entire agreement between the Parties and, except as expresslystated, supersedes all proposals, all prior agreements, commitments, oral or written, and all negotiations,conversations or discussions between the Parties relating to this Agreement.
7.11 Modifications. Developer may amend this Agreement at its sole discretion with notice thereof. E-mailnotice and conspicuous notice on Developer’s website shall be considered sufficient for the purposes ofthis clause. Company’s continuous receipt of the Services after any such amendment shall constituteCompany’s agreement thereto.
7.12 Headings. Headings included in this Agreement are for convenience only and are not to be used tointerpret the provisions of the Agreement between the Parties.
7.13 Assignment. The rights and obligations of Company hereunder may not be assigned, subcontracted, orotherwise delegated without the prior express written permission of Developer. Developer may assignthis Agreement to any third-party upon providing written notice thereof to Company. The terms of thisAgreement shall be binding upon and inure to the benefit of the Parties and their successors andpermitted assigns.
7.14 Waiver. The failure of either Party to enforce at any time any of the provisions hereof shall not beconstrued to be a waiver of the right of such Party thereafter to enforce any such provisions.
7.15 Benefit. This Agreement is made for the benefit of each of the Parties and not for the benefit of any otherpersons.
7.16 Attorneys’ Fees. In any litigation or arbitration between the Parties, the prevailing Party shall be entitledto reasonable attorney fees and all costs incurred in connection with such proceedings.
7.17 No Presumption. There shall be no presumption applied against any Party on the ground that such Partywas responsible for preparing this Agreement or any part of it.
7.18 Notices. Any notice provided or permitted to be given under this Agreement must be in writing and beserved either by (i) deposit in the mail, addressed to the party to be notified, postage prepaid, andregistered or certified, with a return receipt requested, or (ii) deposit with an internationally-recognizedovernight delivery carrier, with notice of delivery to the recipient party. Notice given by registered orcertified mail or overnight carrier shall be deemed delivered and effective on the date of delivery shownon the return receipt or proof of receipt. For purposes of notice the addresses of the parties shall be theaddresses in the first paragraph of this Agreement. Each party may change its address for notice by givingwritten notice thereof to the other party.