Development Agreement

THIS AGREEMENT (“Agreement”) is entered into between Sharp Notions, LLC (“Developer”) and the party set forth in the related Statement of Work (“Client”) incorporated herein by this reference (together with any subsequent proposal and scope forms submitted by Client, the “SOW”) and applies to the purchase of all services commissioned by Client on the SOW (collectively, the “Development Services”). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the SOW.


WHEREAS, Developer is engaged in the business of providing software development services,

WHEREAS, Client desires to retain Developer for the design and implementation of the software set forth herein,

NOW THEREFORE, Developer and Client agree as follows:

1. Scope of Services

Developer agrees to implement a software project for Client in accordance with the specifications set forth in the Statement of Work (“SOW”).

2. Price and Payment Terms

Client will pay Developer for the Development Services according to the terms and time frames for completion set forth in the SOW. Payment is due thirty (30) days after date of invoice. Client may not withhold any amounts due hereunder and Developer reserves the right to cease work without prejudice if amounts are not paid when due. Any late payment will be subject to a thirty-five ($35) dollar late fee, any costs of collection (including reasonable legal fees), and will bear interest at the rate of one (5) percent per month or fraction thereof until paid.

3. Term and Termination

Unless terminated as provided herein, this Agreement will extend to and terminate upon completion of the Development Services. Client may terminate this Agreement without cause upon thirty (30) days written notice. In the event of termination without cause, Client agrees to pay Developer for all Development Services performed up to the date of termination. Either party may terminate this agreement for material breach, provided, however, that the terminating party has given the other party at least twenty-one (21) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.

4. Ownership of Intellectual Property

To the extent that Developer has received payment of compensation as provided in this Agreement, Developer’s Work will be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law and Client will be the sole owner of the original Software and/or any works derived therefrom. To the extent that Developer’s Work is not properly characterized as “work made for hire,” then Developer hereby irrevocably assigns to Client all right, title and interest in and to Developer’s Work (including but not limited to the copyright therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world. Client hereby grants to Developer a non-exclusive license in the Software for the sole purpose of allowing Developer to perform its obligations under this Agreement and for no other purpose.

Developer is the owner, licensee or sublicense of various pre-existing development tools, routines, subroutines and/or other programs, data, and materials that Developer may use or implement in the development of the Software (“Background Technology”). The Background Technology includes but is not limited to those items listed in Exhibit A (Background Technology), attached to the SOW and made a part of this Agreement. Developer retains all right, title and interest in and to the Background Technology, and herby grants Client a non-exclusive license to use the Background Technology only to the extent necessary to use the Software. Client is not authorized to sell or license any Background Technology or rights thereto to any other person or firm.

5. Confidential Information

A. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Developer and will not be disclosed or used by Developer except to the extent that such disclosure or use is reasonably necessary to the performance of the Development Services.

B. All information relating to Developer that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement.

C. These obligations of confidentiality will extend for a period of six (6) months after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.

6. Warranty and Disclaimer


7. Limitation of Remedies

Client’s sole and exclusive remedy for any claim against Developer with respect to the quality of the Development Services will be the correction by Developer of any material defects or deficiencies therein, of which Client notifies Developer in writing within ninety (90) days after the completion of that portion of the Development Services. In the absence of any such notice, the Development Services will be deemed satisfactory to and accepted by Client.

8. Limitation of Liability

In no event will Developer be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the Development Services, whether in contract, tort or otherwise, even if Client has advised of the possibility of such loss or damages. Client further agrees that the total liability of the Developer for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of Developer, whether in contract, tort or otherwise, will not exceed an amount equal to the amount actually paid by Client to Developer for the Development Services during the twelve (12) month period preceding the date the claim arises. Client will indemnify and hold Developer harmless against any claims by third parties, including all costs, expenses and attorneys’ fees incurred by Developer therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement. Client warrants and represents that it is the rightful owner or licensee of all content that it may provide to Developer for implementation on the web site. Client will indemnify and hold Developer harmless against any claims for infringement of intellectual property, including but not limited to infringement of any copyright, trademark, patent or trade secret made against Developer by any third party.

9. Relation of Parties

The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

10. Employee Solicitation/Hiring

During the period of this agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement.

11. Non-assignment

Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

12. Arbitration

Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York. The arbitration will be held in New York. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.

13. Attorneys’ Fees

If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.

14. Severability

If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

15. Force Majeure

Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.

16. No Waiver

The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.

17. Revisions to This Agreement

The Developer may revise, amend or modify this Agreement at any time with thirty (30) days written notice provided to the Client. Continued use of the Services after the effective date of the changes will constitute Client’s acceptance of the modified terms.

18. Entire Agreement

This Agreement together with the SOW and any attachments referred to herein, and in the SOW, constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.

19. Read And Understood

By signing the SOW, the Developer and Client acknowledge that they have read and understand this Agreement and agree to be bound by its terms and conditions.

20. Duly Authorized Representative

If this Agreement is executed then the Developer and Client warrant that their representative whose signature appears on the SOW is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.