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Developer application

Terms and conditions

1. Definitions

1.1. “Confidential Information” shall mean all material and information supplied by Agency that has or will come into Developer’s possession or knowledge of Developer in connection with its performance hereunder. Confidential information does not include information that:

(a) is or becomes public knowledge through no fault of Developer;

(b) Developer knew before Agency disclosed it;

(c) Developer obtains from sources other than Agency who owe no duty of confidentiality to Agency; or

(d) Developer independently develops.

1.2. “Deliverables” shall mean a listing of all items to be delivered to Agency under this Agreement.

1.3. “Derivative Work” as an adaption shall mean a work that is substantially based on any preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorisation of the owner of the copyright in such preexisting work, would constitute a copyright infringement under Swiss copyright legislation.

“Derivative Work” [as an extension] shall mean a work that is substantially based on any preexisting works.

1.4. “Open Source License Agreement” means the terms under which Software is licensed in source code form to the general public for use without charge, including without limitation any license agreement that

(a) conditions the use or distribution of any Software program that incorporates such Software on the disclosure, licensing or distribution of the source code of such program (including such Software) and

(b) otherwise materially limits a licensee’s freedom of action with regard to seeking compensation in connection with licensing or distributing such program or Software in object code form, including without limitation the GNU General Public License or the GNU Lesser General Public License.

1.5. “Open Source Software” means Software licensed pursuant to the terms of an Open Source License Agreement.

1.6. “Schedule” shall mean the delivery dates for each Deliverable.

1.7. “Specifications” shall mean the specifications for the Software as directed by Agency, together with any modifications that may be agreed to in writing by the parties during the term of this Agreement.

1.8 “Contract Price” shall mean the price as agreed between the Developer and the Agency for the work to be performed.

1.9  “Hourly Rate” shall mean the hourly rate paid to the contractor for the duration of the project. In the event that there are hourly rates for different skill levels, it shall mean the hourly rate applicable to the specific skill.

2. Duties and Responsibilities

2.1. Specifications. Agency shall define the Specifications, Deliverables, and Schedules, with input from Developer.

2.2. Development. Developer shall design, develop, and implement the Software in accordance with the Specifications, Deliverables and Schedule.

2.4. Maintenance. Developer shall perform remedial and preventive maintenance for the Software after its acceptance so that the Software continues to perform in accordance with the technical design. Agency and Developer shall negotiate the terms and price of such maintenance services. Agency shall have the right to terminate such maintenance services at any time upon thirty (30) days written notice to Developer. Developer shall have the right to terminate such maintenance services upon thirty (30) days written notice to Agency if Agency is in material breach of the maintenance agreement between Agency and Developer and remains in material breach for such thirty (30) days.

3. Delivery and Acceptance

3.1. Acceptance Period. Agency will have 30 days following the date of delivery to assess and test the Software.

3.2. Completion. If Developer, in the sole opinion of Agency, delivers the Software in accordance with the Specifications, Deliverables, or Schedule, then Developer shall be deemed to have completed its delivery obligations.

3.3. Rejection. If Developer, in the sole opinion of Agency, fails to deliver the Software in accordance with the Specifications, Deliverables, or Schedule, then:

(a) Notification. Agency shall detail in writing its grounds for rejection; and

(b) Rectification. Developer shall promptly OR use its best efforts to correct the Software and upon delivery of such correction, the process of acceptance, completion, and rejection shall restart.

(c) Continued Failure. If the Developer’s corrections, in the sole opinion of Agency, fails to deliver the Software in accordance with the Specifications, Deliverables, or Schedule, then Agency may elect to:

(i) terminate the agreement, or

(ii) adjust the Specifications, Deliverables, or Schedule.

4. Changes

4.1. Change Orders. Agency may request changes to the Specifications, Deliverables, or Schedules.

4.2. Additional Time or Expense. If the proposed change will, in the reasonable opinion of Developer, require a delay in delivery of the Software or would result in additional expense, then:

(a) Agency and Developer shall confer; and

(b) Agency may elect to either:

(i) withdraw its proposed change, or

(ii) require Developer to deliver the Software with the proposed change, subject to the delay and/or additional expense.

If Developer cannot or chooses not to accept the change order, then Agency may elect to terminate the agreement.

5. Payment.

5.1. Development Costs. Agency shall pay Developer:

(a) 30% down payment of the Contract Price on fixed fee contracts; and

(b) 70% of the Contract Price on fixed fee contracts upon delivery in accordance with the Specification.

5.2. Expenses. Subject to Agency’s prior approval, Agency will reimburse Developer for all reasonable expenses incurred by Developer during the development of the Software.

6.Ownership of Software. Developer agrees that the development of the Software is “work for hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that the Software shall be the sole property of Agency. Developer assigns to Agency its entire right, title and interest in anything created or developed by Developer for Agency under this Agreement (“Product”) including all patents, copyrights, trade secrets and other proprietary rights. This assignment is conditioned upon full payment of the compensation due Developer under this Agreement.

7. Term. This Agreement shall commence upon acceptance of the quote by the Agency and continue until all of the obligations of the parties have been performed or until earlier terminated as provided herein.

8. Representations

8.1. No Infringement. Developer represents and warrants that the Software will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any person.

8.2. No Third Party Property. Developer represents and warrants that it will not use any trade secrets or confidential or proprietary information owned by any third party in developing the Software.

8.3. No Obligation. Developer represents and warrants that neither Developer nor any other company or individual performing services pursuant to this Agreement is under any obligation to assign or give any work done under this Agreement to any third party.

8.4. No Open Source. Developer warrants that the Software does not contain any Open Source Software.

9. Warranties

9.1. Performance. Developer warrants that for a period of one year, the Software will operate substantially according to the Specifications.

9.2. Repair or Replace. Developer will repair or replace the System during such one year as soon as possible after Agency informs Developer of any breach of this warranty.

9.3. Exclusions. This warranty excludes any claims based on defects in the Software caused by Agency, other parties beyond the control of Developer, or the hardware.

9.4. No Other Warranties. There are no express or implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, respecting this Agreement, the Software or Services.

10. Acknowledgement-Relationship of the Parties

10.1. Independent Contractor. Developer is an independent contractor and is not an employee or agent of Agency.

10.2. No Partnership. Nothing in this Agreement creates a partnership or joint venture between the parties.

11. Confidentiality. During the term of this Agreement and for five years afterward, Developer will use reasonable care to prevent the unauthorized use or dissemination of the Confidential Information.

12. Indemnification. If any third party brings a lawsuit or proceeding against Agency based upon a claim that the Software breaches the third party’s patent, copyright or trade secrets rights, and it is determined that such infringement has occurred, then Developer shall hold Agency harmless against any loss, damage, expense or cost, including reasonable attorney fees, arising from the claim.

13. Limitation of Liability. Neither party shall be liable for any special, indirect, incidental or consequential damages (including damages for loss of business, profits or any other loss) incurred or suffered in connection with the Software or services performed in connection with this agreement.

14. Term and Termination.

14.1. Termination for Cause. This Agreement may be terminated by either party upon written notice to the other, if:

(a) the other party breaches any material obligation; and

(b) the breaching party fails to cure such breach within 30 days of receipt of the notice.

14.2. Effect of Termination

(a) Payment of Outstanding Fees. Agency shall pay Developer for all services rendered and work performed up to the date of termination, subject to Agency’s right to pay only fair value if Agency terminates for cause.

(b) Return or Destruction. Within 30 days after the termination or expiration of this Agreement, Developer shall return, or at the option of Agency, Developer shall destroy all copies of Confidential Information and shall deliver written certification by an officer of Agency that Agency has complied with these requirements.

15. General Provisions.

15.1. Dispute Resolution. Any controversy or claim arising out of or relating to this contract shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the Swiss Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.

15.2. Notices. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or a recognised overnight delivery service such as FedEx.

If to Agency:
Chemin Neuf 8
1955 Chamoson

If to Developer:

The address as recorded upon registration as a Developer with the Agency.

15.3. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all understandings and agreements whether written or oral.

15.4. Amendment. No amendment or modification of this Agreement is valid unless in writing, signed by the parties.

15.5. Governing Law. This Agreement is governed by the laws of Switzerland, without regard to any conflict of law principles.

15.6. Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party.

15.7. No Waiver. The waiver or failure of either party to exercise any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.

15.8. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.

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