Last Updated: 29/05/2024
Seeai LTD.
Platform, New Station St, Leeds, LS1 4JB, United Kingdom
Client Name
Client Address
This Software Development Agreement (the "Agreement" or "Software Development Agreement") states the terms and conditions that govern the contractual agreement between Seeai LTD. having his principal place of business at Platform, New Station St, Leeds, LS1 4JB, United Kingdom (the "Developer"), and Seeai's clients (the "Client") who agrees to be bound by this Agreement. NOW, THEREFORE, In consideration of the mutual covenants and promises made by the parties to this Software Development Agreement, the Developer and the Client (Individually, each a "Party" and collectively, the "Parties") covenant and agree as follows:
Acceptance Criteria: the acceptance criteria or other completion conditions for a Deliverable where we agree these with you specifically in a Statement of Work.
Acceptance Tests: the tests that are to be run as agreed in the Statement of Work to determine whether a Deliverable complies with its Acceptance Criteria, where applicable, and the expected results of those tests.
Bug: An error, flaw, or fault in the design, development, or operation of the Software that causes it to produce an incorrect or unexpected result or to behave in unintended ways.
Deliverables: as expressly set out in the Statement of Work, the deliverables to be provided under a project which may include Software, Documentation or other reports and guidance notes provided as part of the Consulting Services from time to time.
Dependencies or Dependency: refers to those factors, in addition to any generally applicable Relief Event, which have been recognised as having the possibility to impact the timely or accurate completion of a Project as may be set out in the applicable Statement of Work.
Index: the Retail Prices Index Jevons (RPIJ) of the United Kingdom Office for National Statistics or, if that index ceases to be published, the nearest index having like effect.
Relief Events: means any of the following events:
any failure by the Client to comply with its obligations under this agreement;
any error or malfunction in the Client’s computer systems or any other software, hardware or systems or information for which the Developer is not responsible or any failure by the Client, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Developer is not responsible;
any failure by the Client or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to the Developer which is reasonably required by the Developer for the proper performance of its obligations under this agreement; or
any infringement of third party rights caused or contributed to by the Client including but not limited to unauthorised use.
Requirement: the non-technical description of a requirement of the Client, describing the intended operations, functions, performance and other characteristics intended to be outcomes of a Project.
Resource Allowance: a unit of measurement of the amount of resource allocated for Services to be delivered under a Retainer arrangement.
Result: the result of development work carried out under this agreement to meet a particular Requirement.
Specification: means the agreed input (files, written descriptions, images, UI/UX files, etc.) provided by the Client for the definition of the scope of the Services.
This agreement shall commence on the date of last signature to these terms and conditions and each Project falling under and made pursuant to this agreement shall begin on the Commencement Date of the relevant Statement of Work and shall continue, unless terminated earlier in accordance with its terms, until Project Completion when the Project under that Statement of Work shall terminate automatically without further notice. This Agreement shall expire naturally upon the completion or termination of all active and contemplated Projects under it.
If for any reason either party wishes to terminate this Agreement, a formal Notice of Termination must be submitted in writing seven (7) days prior to the termination date. Termination of this Agreement will not automatically terminate any existing Project under any agreed Statement of Work but it shall prevent any new Statements of Work or Projects being entered into.
All Projects and other Statements of Work shall continue for their own duration and shall survive expiry or termination of this Agreement unless expressly stated to the contrary.
By executing a Statement of Work referencing this Agreement, a new and separate contract for Services will be created and each subsequent Statement of Work shall create a new and separate contract in each instance.
If you require Services from us, then you must give us as much detail as possible of any Requirement or specific Deliverables you need and we will endeavour to respond within five (5) Business Days with a draft Statement of Work, usually in the same format as the template attached to this Agreement, or a request for further information where reasonably required (a Data Capture Document) which we use to set out your objectives in order to scope the Project. If you need anything specific added to the Statement of Work or this Agreement for your internal process/compliance purposes, then please let us know as soon as possible.
Where we send you a draft Statement of Work we will let you know if it is suitable for Commencement or if we need further information from you to be able to further investigate or scope any Requirement or Deliverable that, at the time, we think you may need.
Deliverables-based Projects. If you know what you need and this can be well defined, we will set this out as a Deliverable and we will work with you to determine the Acceptance Criteria used to carry out the final Acceptance Tests in order determine Project Completion in relation to those Deliverables following the procedure set out in this Agreement and in the Statement of Work.
Requirements-based Projects. If you have a rough idea of where/what you want to end up with, but you aren’t sure how to get there or it can’t really be well defined, we might agree to a list of Requirements with you rather than a set list of Deliverables. If we work on a Requirements basis, then
we will work with you to achieve a Result that matches your Requirements as closely as possible in the circumstances taking into account the Fee and duration of the Project; and
you accept that this is not likely (or guaranteed) to precisely match your initial Requirements in every way, though the solution provided should substantially achieve those Requirements.
We will generally assume responsibility for managing our assets involved in each Project and its delivery, and we will almost always be heavily reliant on some Dependencies of your own staff or materials/resources etc. Where we identify Dependencies we will set these out in the Statement of Work or we will flag them up to you as soon as possible during the Project as and when they become apparent or as they cause delay.
Beginning on the relevant Commencement Date, Seeai shall provide the Services as set out in the applicable Statement of Work pursuant to the terms of this Agreement.
In consideration for the Services to be performed by the Developer, the Client shall pay the Developer the agreed Fees as set out in the Statement of Work or the Rates set out in Schedule 1 as applicable from time to time.
Unless otherwise agreed, such as under a Retainer, the Fees shall be due and payable within 14 days of the Developer’s invoice. Invoices shall be issued by the Developer monthly in arrears where charges are based on time and materials rates. INTEREST SHALL BE PAYABLE ON LATE PAYMENTS AT THE RATE OF 4% ABOVE THE BASE RATE OF THE BANK OF ENGLAND FROM TIME TO TIME (OR ABOVE ZERO IF GREATER) CALCULATED FROM THE DUE DATE UNTIL PAYMENT.
Retainer Services: means Services including but not limited to ongoing support and advice which may include any Services or element of Services that the Developer generally provides from time to time where a monthly pool of hours are made available for the Client to drawn down upon in order to instruct the Developer to perform such Services. Where Retainer Services are provided then:
Retainer Services involving or requesting any change to existing Services shall follow the Agile process unless otherwise agreed and the applicable Resource Allowance available shall be calculated based on the Clients monthly allowance as set out in the Retainer. Retainer Services shall be provided on a Fixed Fee basis unless otherwise agreed in the applicable Statement of Work.
For each Retainer the Client shall be entitled to request Services on an ad-hoc basis to direct resources of the Developer to perform Services according to its directions from time to time up to the amount of work effort provided for within each monthly period (the “Resource Allowance”).
Where the Client does not make use of the full amount of their Retainer Allowance, there will be no roll-over into any future monthly periods and the Retainer Allowance shall reset upon the expiry of each monthly period.
The Client acknowledges and accepts that the Retainer Allowance does not provide for urgent response times and the Retainer Services to be drawn down from the Retainer Allowance each month should generally be agreed at least two (2) weeks prior to such Retainer Services commencing.
The Developer may update its Rate Card as set out in Schedule 1 from time to time upon 30 calendar days written notice to the Client.
If there are one or more past-due invoices, or any Relief Event occurs, the Developer may suspend work on the Project until any non-compliance is resolved.
Deliverables will be subject to Acceptance Testing (according to the following Procedure) where identified in the Statement of Work:
No later than 30 days from the Commencement Date of a Statement of Work, the parties shall agree the Acceptance Criteria or a further schedule for making such determination where applicable. These criteria and data shall be such as are reasonably required to show that the relevant Deliverable complies with the Acceptance Criteria. The parties shall provide reasonable assistance to the other in preparation of any Acceptance Criteria as required. The parties shall use best endeavours to agree the Acceptance Tests for the System within ten days from the date of delivery from one party to the other of the proposed Acceptance Criteria and other relevant data.
Within ten days of delivery of the relevant Deliverable, the Acceptance Tests shall be carried out. The Acceptance Tests shall be started as soon as reasonably possible after installation or delivery and shall be run continuously during Normal Working Hours. The Developer shall carry out the agreed Acceptance Tests for the Deliverable unless the Client notifies the Developer, not later than five days after the relevant delivery date, that it will carry out the Acceptance Tests. The party carrying out the Acceptance Tests shall give the other party at least 24 hours' notice of the start of the Acceptance Tests and permit the other party to observe all or any part of the testing.
If the Deliverable fails to pass the Acceptance Tests, the Client shall, within five (5) days from the completion of the Acceptance Tests, or any part of these tests, provide a written notice to this effect, giving details of such failure(s). The Developer shall remedy the defects and deficiencies and the relevant test(s) shall be repeated within a reasonable time.
If the Deliverable fails in some material respect to pass any repeated Acceptance Tests within four weeks from the date of its second submission to the Acceptance Tests, then the Client may, by written notice to the Developer, choose at its sole discretion:
to fix (without prejudice to the Client's other rights and remedies) a new date for carrying out further tests on the Deliverable on the same terms and conditions. If the Deliverable fails such further tests then the Client may request a repeat test under this clause; or
to accept the Deliverable subject to such change of Acceptance Criteria, amendment of the Technical or other applicable Specification and/or reduction in the Price/Fee as, after taking into account all the relevant circumstances, is reasonable; or
if the Developer is unable to correct material defects within a period of three (3) months from the commencement of Acceptance Tests under any repeated test as set out above, to reject the Deliverable as not being in conformity with the Statement of Work, in which event the Client may terminate the part of the Statement of Work relating to such Deliverable.
Acceptance of Deliverables
Acceptance of the Deliverable shall be deemed to have occurred on whichever is the earliest of:
the signing by the Client of an Acceptance certificate for the Deliverable which has passed the Acceptance Tests;
the expiry of five days after the completion of all the Acceptance Tests under a Statement of Work, or in relation to the Milestone identified in that Statement of Work, unless the Client has given any written notice under the clause above;
the expiry of ten days after the date of delivery of the final Deliverable if the Acceptance Tests for that module have not started, or have not been pursued with due diligence, unless such failure results from the Developer's failure to co-operate in the performance of the Acceptance Tests; or
the use of the Deliverable by the Client in the normal course of its business such as in a live or Client facing capacity or environment whether for profit purposes or not.
Subject to clause 6.2 below The Developer warrants that:
the Software deployed to the Client under this Development Agreement will conform in all material respects with the agreed Specification for a period of 15 calendar days after delivery (the Warranty Period);
The Services will be carried out using reasonable care and skill
The Developer’s staff and contractors shall be suitably skilled and experienced taking into account their different roles and responsibilities;
As far as it is aware the Software developed as part of the Services will not violate the intellectual property rights of any third party.
This warranty is limited to the scope of this contract and does not include any non-conformities arisen from any identified Client Dependency, changes or updates to third party libraries, data and communication services, or any Relief Event or other cause not directly related to the scope of this contract.
Any Bugs reported to the Developer during the Warranty Period will be fixed by the Developer at no additional cost to the Client. The Software shall be deemed to be accepted by the Client if no Bugs are reported by the Client to the Developer during the Warranty Period.
Time shall not be of the essence in relation to any timeframe, deadline or implementation plan milestone agreed under this agreement or a Statement of Work from time to time.
The warranties set out in this are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose.
The Client acknowledges and agrees that:
the co-operation and effective and prompt communication and support of the Client and specifically its employees with knowledge relevant to the Project are crucial to the overall and timely success of the Project;
some development effort may not be used or may be used in a different way from the way in which it was originally intended, owing to lack of detailed due diligence, design and scoping before commencement of the Services inherent in more agile development processes; and
where the Client cannot provide certainty of its objectives to the extent required to establish fixed Deliverables, where the Client instead requests the Developer to use its independent and professional judgement in determining how to produce a Result to substantially achieve such less defined Requirements, the Developer is not committing to deliver any particular Result which exactly matches the Requirements.
The Client shall:
Be responsible for the accuracy and completeness of the Client Materials;
Be responsible for ensuring meaningful and timely participation of its employees and agents as part of the Services as required from time to time;
comply with the terms of any applicable third party licences which either form part of the existing Client Software or as may be incorporated into the Software by the Developer, provided that the Developer brings the existence of such third party software to the attention of the Client during the Project;
Inform the Developer of any relevant Client Software forming part of the Client Systems and any modifications (including add-on packages where applicable) to the standard deployment of third-party software products forming part of the Client Software which may be involved in the Project work in any way;
obtain any required and relevant legal or other professional advice relating to its deployment of the Project services or any Consulting advice provided and shall maintain all necessary licences, consents, and permissions necessary for the Developer, the Project Team and the Project Participants to perform their respective roles, responsibilities, obligations and duties under this agreement including as regards any modification or other bespoke development of the Client Software;
ensure that the Client Systems, and all network connections and telecommunications links from the Client Systems to the Developer's systems and/or data centres and any other applicable hardware complies with the relevant specifications provided by the Developer from time to time or if no specification is provided then such items must comply with and shall be assumed to match applicable industry norms or original manufacturer specifications; and
use all reasonable endeavours not to introduce Viruses into the Developer network and information systems and to take reasonable steps to prevent any security breach.
If you provide things to us, that doesn’t mean we own them. The parties acknowledge and agree that the Intellectual Property Rights in the Client’s Materials, and any Client Software are, and shall remain, the property of the Client or its respective licensors.
If you provide things for us to use in the Project, you have the right to let us use them in the way we say we will use them or that you ask us to, and you give us a license to those things for that purpose. The Client grants, subject to the terms of this agreement, the Developer the non-exclusive right to use the Client’s Materials and the Client Software for the purpose of exercising the Developer's rights or performing its roles, responsibilities, duties and obligations under this agreement (including those expressed to be on the part of the Project Team) during the Project Term.
We will own the core rights (ownership) to any Deliverables, unless they are Bespoke (and then you’ll have ownership of them), but we will provide you with a licence so that you can use them for your internal business purposes. The Intellectual Property Rights in the Deliverables and the Software (including all object code and Source Code versions) shall, at the Commencement Date or (if later) on creation of the rights from time to time, vest in the Developer unless otherwise agreed in writing in the Statement of Work. The Client assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights with full title guarantee to the Developer. If work effort is expressly identified in the Statement of Work as being “Bespoke”, in each case, then all Intellectual Property Rights created shall instead be deemed to vest in the Client.
If, in creating Bespoke Deliverables for you, we discover a more efficient process, template or way of working, if that improvement doesn’t only relate specifically to you or if you can’t be identified as the source of that improvement, then we are allowed to use it to improve our own services generally. Where Bespoke services lead to the creation of Intellectual Property Rights vesting in the Client, the Developer shall be granted a perpetual licence to such inventions and improvements in processes or processing and the like that exist or are contained within such Intellectual Property Rights only to the extent that such Bespoke materials cannot be traced back to the Client as the source. For the avoidance of doubt, the Developer shall not be restricted in its use of Bespoke creations to the extent that its own Services can be generally improved by further use of such discoveries, inventions and improvements existing in those Bespoke creations. To the extent that Bespoke creations can be used to identify the Client, these shall be deemed to be the Confidential Information of the Client and this clause shall not give the Developer any rights at all to make use of the Client’s brand identity or other such registered marks for its own purposes.
We provide our work to you in return for payment, we hold it back to protect our own interests and usually until you’ve paid us in cleared funds, which means that you’ll get the source code for all Bespoke work when the Project is completed and after you’ve paid for it in full. Where Bespoke creations result in Bespoke Software being produced for the Client then, subject to payment of all Fees relating to the Project, the Client shall be provided with all applicable Bespoke Source Code for such Bespoke Software at Project Completion.
If either of us need to make the legal position around ownership of Deliverables more clear for some reason, before Project Completion, we will both work together to do what is reasonably required in the circumstances to achieve that clarity. The Client shall do and execute, or arrange for the doing and executing of, each act, document and thing that the Developer may consider necessary or desirable to perfect the right, title and interest of the Developer in and to the Intellectual Property Rights in the Deliverables, including, if this agreement is terminated before Project Completion, any uncompleted Deliverables and the Developer shall likewise offer the same courtesy to the Client as applicable to vest ownership in any Bespoke creations to the Client in any such circumstance.
In relation to Bespoke Deliverables, the Developer shall, and in relation to Deliverables the Client shall:
procure the irrevocable waiver of all moral rights in the Deliverables, to the extent permitted by law;
ensure that records are maintained which are sufficient to provide evidence of the process of independent creation of the Deliverables;
be responsible for ensuring that written agreements are entered into with, and adhered to by, employees and subcontractors engaged in the performance of this agreement and that, unless otherwise agreed with the other party in writing in advance, the terms of engagement of such employees and subcontractors are consistent with, and enable each party to fully to comply with, the provisions as to the Deliverables set out in this agreement, including this.
The Client shall use reasonable endeavours to prevent any infringement of the Developer's Intellectual Property Rights in the Services, Software or the Deliverables and shall promptly report to the Developer any such infringement that comes to its attention.
The Client understands and agrees that any web hosting services are likely to require a separate contract with a web hosting service.
The Client agrees to select a web hosting service which shall provide the Developer with all required access to the website.
It is understood by the parties that the Developer is an independent contractor with respect to the Client, and not an employee of the Client. The Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of the Developer.
The Developer shall not disclose to any third party the business of the Client, details regarding the Client’s Software, including, without limitation any information regarding the Specifications, or the Client's business (the "Confidential Information"), (ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by the Client or (iii) use Confidential Information other than solely for the benefit of the Client.
The parties both warrant to the other that:
The use and delivery of the Services under this Agreement are not and shall not be in violation of any other agreement that either party has with another party;
Each of their representatives has the requisite authority to agree to the terms set out in this Agreement and to approve any required changes to the Statement of Work.
The Client acknowledges and agrees that, except as expressly provided in this agreement, the Client assumes sole responsibility for:
results obtained from the use of the Services, Software and the Documents by the Client, and for conclusions drawn from such use;
procuring and maintaining the Client Systems, and all network connections and telecommunications links from the Client Systems to the Developer's systems and data centres;
all problems, conditions, delays, delivery failures (including any of those concerning transfer of data) and all other loss or damage arising from or relating to the Client's or its agents' or contractors' (including any existing service provider's) network connections, telecommunications links or facilities, including the internet and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities; and
loss or damage arising from or relating to any Relief Event.
Neither party excludes or limits liability to the other party for:
fraud or fraudulent misrepresentation;
death or personal injury caused by negligence;
a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
any matter for which it would be unlawful for the parties to exclude liability.
Subject to clause 13.2, neither party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, data, reputation or goodwill;
loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
any loss or liability (whether direct or indirect) under or in relation to any other contract.
Clause 13.3 shall not prevent claims that fall within the scope of clause 13.5, for:
Damages or other compensation, including any applicable service level credits recovered by the Developer from third-party Hosting Services providers following data loss;
Loss of or disclosure of data in breach of any applicable duty of confidentiality a breach of the duties arising pursuant to applicable Data Protection Legislation.
direct financial loss that are not excluded under any of the categories set out in clause 13.3.1 to clause 13.3.3 inclusive; or
tangible property or physical damage.
Subject to clause 13.2, the Developer's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to 100% of the amount of the Fees charged or payable over the period of 12 months immediately preceding the event.
Subject to clause 13.2, the Developer's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with and breach or liability arising pursuant to clause 13.4.2 shall be limited to 125% of the amount of the Fees charged or payable over the period of 12 months immediately preceding the event.
The Client acknowledges and agrees that the Client is solely responsible for complying with laws, taxes, and tariffs that governments enact and amend from time to time in connection with internet electronic commerce, and shall indemnify, hold harmless, protect, and defend the Developer from any cost, claim, suit, penalty, or tariff, including attorneys' fees, costs, and expenses, arising from the Client’s exercise of Internet electronic commerce or use of Software.
This Agreement contains the entire agreement of the parties and there are no other promises or conditions in other agreement whether oral or written.
No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties’ authorised representatives.
Writing shall include email but not fax.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate this agreement by giving thirty (30) days' written notice to the affected party.
This agreement and the interpretation of its terms in relation to any dispute arising out of or relating to it howsoever shall be subject to the laws of, and construed exclusively in accordance with English law, whose courts shall also have exclusive jurisdiction.
The Developer shall be entitled to raise an invoice in respect of any payment which falls due to the Developer pursuant to this agreement.
The Developer shall ensure that each invoice contains the following information:
the date of the invoice;
a unique invoice number;
the milestone or other period(s) to which the relevant Fees relate;
details of the correct agreement reference;
the reference number of the purchase order to which it relates (if any);
the total Fees or compensation payable the Agreement or Project (as the case may be) and, separately, the amount of any expenses or disbursements properly chargeable to the Client under the terms of this agreement, and, separately, any VAT or other sales tax payable in respect of the same;
a contact name and telephone number of a responsible person in the Developer's finance department; and
the banking details for payment to the Developer via electronic transfer of funds (including name and address of bank, sort code, account name and number).
Each invoice shall at all times be accompanied by sufficient information (Supporting Documents) to enable the Client to reasonably assess whether the Fees, expenses and disbursements detailed thereon are properly payable. Any such assessment by the Client shall not be conclusive. The Developer undertakes to provide to the Client any other documents reasonably required by the Client from time to time to substantiate an invoice.
The Developer shall submit all invoices and any Supporting Documents in such format as the Client may specify from time to time to the client, with a copy of such invoices and any such Supporting Documents to such other person and at such place as the Client may notify to the Developer from time to time.
All Developer invoices shall be expressed in British pounds sterling if the Client is based in the United Kingdom or in United States Dollar, if the client is based in the United States.
Without prejudice to the due date of any payment or the calculation therefrom of interest properly due and except in the event of material or obvious error in the Fees, where any invoice does not conform to the Client's requirements set out in this Schedule, the Client may return the disputed invoice to the Developer. The Developer shall promptly issue a replacement invoice which shall comply with these requirements.