THIS AGREEMENT

BETWEEN:

(1) Zombie Design Limited of [address] ("the developer")
And
(2) [client name] of [address] ("the client")

RECITALS

(A) The developer is in the business of developing, publishing and distributing bespoke iPhone applications.
(B) The client is a [nature of business] seeking the development of an iPhone/iPad application for its business to be distributed via the Apple App Store.

NOW IT IS AGREED AS FOLLOWS:

1. Delivery and Approval

1. The developer shall immediately submit to the client a preliminary design specification which shall include a general overview of the application.
2. The client shall provide the developer with such materials and assistance in furtherance of the developer's service obligations as the developer shall deem necessary for the development of the application.
3. Both parties will ensure that the application will not contain any libellous or otherwise unlawful material or infringe any statutory or common law copyright, trademark or patent or otherwise infringe any personal or proprietary right of any person or entity.
4. The developer will deliver to the client the completed application for approval within x days hereof. Upon receipt of the completed application the client will, within 10 days deliver to the developer a written notice of acceptance or alternatively a notice specifying the nature of any deficiency. Any deficiencies will be remedied by the developer within 5 working days of receipt of the notice and the application shall be re-delivered for approval.
5. In the event of a failure by the client to provide a notice of acceptance or to specify any deficiencies the application will be deemed to have been approved 10 working days after delivery.
6. The parties shall act in good faith in connection with the delivery and acceptance procedure contained within this clause.

 

2. Distribution

1. Within 5 working days of actual or deemed approval the developer shall submit to Apple Inc the application for its approval under the developer’s Apple Developer Licence and the application shall thereafter be available for download to users of the UK App Store.
2. The application shall remain available on the App Store for download for an indefinite period but may be removed at any stage at the client’s request upon giving to the developer written notice of 5 working days of its desire to do so.

 

3. Development Fee

1. In consideration for the services provided by the developer the client shall pay a development fee of £xx
2. The fee shall be payable on the following terms:
1. 50% within 14 days of this agreement
2. 50% within 14 days of actual or deemed acceptance of the application

 

4. Royalties

The developer recommends that the application be available for free download but in the event that the client wishes to sell the application via the App Store then royalties shall be payable to the developer on the following terms:

1. 10% of the income derived from the sale of the application (net of fees deducted by Apple Inc.)
2. Payable monthly in arrears on the last working day of each month.

 

5. Modifications and Improvements

Any modifications or improvements to the application after its approval shall be negotiated and charged to the client at a rate to be separately negotiated by the parties.

6. Intellectual Property

The developer shall retain all right title and interest in the application including all intellectual property rights and shall retain the source code to the application. The developer shall be considered the author of the application for the purposes of copyright. The client agrees not to challenge the validity of the developer's ownership of the application.

7. Maintenance Agreement

1. The client shall pay to the developer a monthly maintenance charge of £xx for a minimum period of 12 months from the date of this agreement. This maintenance agreement may be cancelled by the client upon the expiry of 3 months written notice to expire not before the first anniversary of this agreement.
2. The developer’s maintenance obligations shall be to provide technical support to the client and to ensure the application’s compatibility with any future iOS updates.

 

8. Developer’s Warranties and Representations

The developer warrants and represents that it has all necessary rights and authority to execute and deliver this agreement and to perform its obligations under this agreement and that nothing contained in this agreement or the performance of it will place the developer in breach of any other contract or obligation.

9. Limitation on Liabilities

Neither party shall be liable to the other party for any incidental, consequential, special, or punitive damages or lost or imputed profits or royalties arising out of this agreement, whether for breach of warranty or any obligation arising therefrom or otherwise, whether liability is asserted in contract or tort (including negligence and strict product liability) and irrespective of whether the party has advised or has been advised of the possibility of any such loss or damage. Each party waives any claims that these exclusions deprive such party of an adequate remedy.

10. Confidentiality

Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper performance of this Agreement, use or disclose to any person, firm or company, any confidential information belonging to the other party or its clients, suppliers or customers, nor permit its use or disclosure.

11. Publicity and Testimonial

1. Notwithstanding clause 10 above, the client consents to the use of their trading name within any promotional material to be published by the developer in the future. Such promotional material will not contain any confidential information and shall be limited to reference to the fact that the developer has developed the application on behalf of the client.
2. The client agrees to provide a testimonial to the developer for use in promotional material.

 

12. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

13. Notices

Any notice served under this agreement shall be in writing and shall be sent by first class post to the address of the relevant party set out at the head of this agreement or by email to [email] or [email] respectively. Notices sent by post shall be deemed served 2 working days after posting and by email 1 day after sending.

14. Waiver

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

15. Time of the Essence

Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.

16. Proper Law and Jurisdiction

This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law.

17. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.