Full name, [registered] address, telephone number, facsimile number and ACN (if applicable) of supplier and customer
This avoids confusion at a later date as to who the parties to the contract are - in many cases confusion may arise due to similar business and company names.
Recitals which give an overview of the roles of the parties to the agreement
Definitions
Should include definitions of all important terms used in the agreement to avoid confusion or ambiguity, for example:
What you consider to be your confidential information
What is the Intellectual Property
What is to be designated as your library code
Scope of your agreement
Have you considered the development timetable and acceptance tests?
What is the duration of the agreement - fixed or deliverable?
Software Specification
Is it agreed?
Is installation, documentation and testing etc included
Performance Warranty
Variation procedure
Intellectual Property Rights
Who is to be intellectual property owner?
If intellectual property rights are to be retained by the supplier, what are the terms of the licence?
Non transferable
irrevocable
in perpetuity or fee per annum
Are there any limitations on use of the product?
Seats
Machines
Who owns the Tools used to build the product?
Are you assigning the copyright in your library code or licensing the use of same?
If licensing the use of your library code, designate how the library code is to be used.
What support do you have to provide to your customer?
Usually developers will provide support services pursuant to a separate agreement which will include:
What is the duration of support?
Is renewal of the Agreement automatic?
What is the Supplier to provide?
What products are supported?
Is upgrade to new levels of products compulsory if requested by Supplier
What level of support is required - On Site and/or Off Site, telephone support, e-mail support
Hours of operation
Are any warranties offered?
Are there performance criteria which must be satisfied?
Time frames for support
Guaranteed running time?
Are Updates/New Releases of supported products included?
Training
What services are excluded from Support
Consumables?
What does the customer need to supply?
Source code?
Access to premises
Access to equipment/modem facilities
Method of request for support
Fees
Limitation of Liability
Termination
Right to subcontract
What access will you need to your customer's site, personnel, software and equipment?
What are the prerequisite platform requirements?
Agree on the required hardware and software platform.
Any additional software to be detailed and supplied at who's expense?
What are your fees
Usually involves multiple calculations so they should be expressed in a schedule to the agreement
On what notice can you increase your fees?
Are your fees exclusive of taxes, duties, fees or other government levies or charges?
What interest is to be paid on overdue amounts? Will you want to suspend further services or your remaining obligations to the customer if you are not paid?
What are the customer's obligations for security of the developed software to minimise the likelihood that there is unauthorised use of the software?
How is the customer allowed to deal with your confidential information?
Do you want a restraint period to avoid your employees or subcontractors being engaged directly by your customer?
Intellectual property right indemnities
What warranties do you want to give with respect to Intellectual Property?
How will you indemnify your customer if your software is found to infringe another party's intellectual property?
How will you deal with defects?
No obligation to fix unless substantial
Fixed without fee
Period of defect correction
Quality Standards
Implied terms
Due care and skill
Fit for purpose
Limitation of liability - is it valid?
Indemnity for loss suffered by third parties
Financial Undertaking
Does your customer need to obtain appropriate insurance.
How are the parties able to terminate the agreement?
Which clauses do you want to survive the termination of the agreement?
Are you or your customer able to assign, novate or sub-contract your rights or obligations under the agreement?
What is the governing law for the agreement?