Exhibit 10.3
This SOFTWARE DEVELOPMENT AGREEMENT (this "
Agreement ") is made at Vancouver, British Columbia, on
December 1, 2002.
By and Between:
Evove, Inc. , a company
incorporated under the laws of the State of Nevada, having its
registered office at 1850 Lands End Road, Sidney, British Columbia,
Canada V8L5J2 (" EVOVE ")
and:
Xten Networks Inc. , a company
incorporated under the laws of the Province of British Columbia,
having and office at Suite 7170 - 515 West Hastings Street,
Vancouver, British Columbia, Canada V6B5K3 (" Developer
")
1.
DEFINITIONS
1.1 "
Development Program " shall mean the activities undertaken
by the parties hereunder for the development of the Software and
Documentation satisfying the Specifications pursuant to this
Agreement.
1.2 "
Development Work " shall mean the Software, Documentation
and all other results and items arising out of the Development
Program, including without limitation, all Deliverables,
programming materials, source code and binary code for all portions
of the code, inventions, designs, notes, records, memoranda,
documentation and other materials, as well as all Enhancements,
derivatives and modifications thereof, and all intellectual
property rights thereto.
1.3 "
Deliverables " shall mean the Software, Documentation and
other materials to be delivered by Developer to EVOVE pursuant to
this Agreement.
1.4 "
Documentation " shall mean the reference, implementation and
user manuals which describe in reasonable detail the operation of
the Software that is normally provided by Developer as part of its
deliveries to its customers.
1.5 "
Enhancements " shall mean error corrections, bug fixes,
modifications and updates with respect to the Software.
1.6 "
EVOVE Property " shall mean all property, including,
designs, software, documentation, models, tools, devices and other
materials, owned or licensed to EVOVE, which may be furnished to
Developer by EVOVE under this Agreement.
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1.7 "
Software " shall mean the Source Code and Documentation for
the computer software program(s) described in Exhibit A to be
developed by Developer pursuant to the Development Program,
together-with all Enhancements made thereunder.
1.8 "
Source Code " shall mean the readable forms together with
make and build files.
1.9 "
Specifications " shall mean the specifications set forth in
Exhibit A for the Software to be developed hereunder, together-with
all modifications made thereunder.
2.
DEVELOPMENT EFFORT
2.1
Development. Commencing upon the execution of this
Agreement, Developer agrees to use its commercially reasonable
efforts to perform its obligations under the Development Program
and to deliver Deliverables.
2.2
Subcontractors. Developer may subcontract the performance of
the Development Program to third parties, provided that each such
subcontractor shall have agreed in writing to be bound by terms and
conditions at least as stringent and restrictive as the terms and
conditions of this Agreement, including in particular Sections 4, 7
and 10.
2.3
Program Management and Changes. Each party designated the
person(s) set forth in Exhibit B as the primary contact of each
party with respect to this Agreement, which person(s) may be
redesignated by a party by notice to the other. In the event of a
necessary or desired change in any material aspect of the
Development Program, the parties shall mutually agree to any such
change in writing prior to its implementation. A proposed change
shall be initiated by the proposing party in a written notice to
the other party. The receiving party shall review such proposal in
a timely manner. The parties agree to discuss in good-faith the
effect on each party of such proposed change, including any effect
on the binary and/or cost of the Development Program.
3.
DELIVERY
3.1
Delivery. On each and every Friday during the term of this
Agreement, Developer shall deliver to EVOVE the corresponding
Deliverables. Deliverables shall be in source code and binary code
forms. Deliverables consisting of Documentation shall be in both
human-readable and electronic formats.
4.
OWNERSHIP AND LICENSES
4.1
Ownership and License. EVOVE shall own all right, title and
interest in the Software and any modifications to the Software,
Documentation, Enhancements and other Development
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Work. Developer shall have no rights to use, sell, sublicense or
distribute the Software, Documentation, Enhancements or any other
Development Work. Developer hereby grants to EVOVE and its
subsidiaries and affiliates an exclusive, worldwide, perpetual,
irrevocable right and license, including the right to sublicense,
to use, reproduce, modify, display and distribute the Software,
Documentation, Enhancements and other Development Work to any third
parties.
4.2
Developer Code. EVOVE shall own all right, title and
interest in the Developer Code incorporated within the Software
existing as of the effective date of this Agreement. With respect
to such Developer Code incorporated within the Software, Developer
hereby grants to EVOVE an exclusive, worldwide, perpetual
irrevocable right and license, including the right to sublicense,
to use, reproduce, modify, display and distribute the Developer
Code to any third parties.
4.3
EVOVE Property. EVOVE hereby grants to Developer a
non-exclusive, royalty-free, non-transferable internal license to
use the EVOVE Property and intellectual property embodied therein,
for the sole purpose of performing Developer's obligations under
this Agreement. No EVOVE Property may be provided to any third
party without the prior written approval by EVOVE. All EVOVE
Property shall be returned immediately upon EVOVE's request.
5.
MAINTENANCE AND SUPPORT
5.1
Maintenance and Support for Software. Developer agrees to
provide to EVOVE maintenance and support services for the duration
of this Agreement. Maintenance and support thereafter shall be
governed by a separate and independent agreement. Except as
otherwise agreed in writing between EVOVE and Developer, EVOVE will
be responsible for all maintenance and support of the Software with
respect to any end-users.
5.2
Product Evolution. The parties anticipate that EVOVE may
from time to time request additional functionalities to be made to
the Software. Upon request by EVOVE, Developer agrees to make such
adaptations, or develop such enhancements on terms and conditions
to be mutually agreed upon in writing, which may provide for
additional payments by EVOVE to Developer. The fee for any such
adaptations or enhancements shall be at the Developer's then
current rates.
5.3
Additional Developer Services. Upon request by EVOVE,
Developer agrees to negotiate in good faith with EVOVE with respect
to providing additional maintenance, support or other service with
respect to the Software for EVOVE and/or its customers.
6.
COST AND FEES
6.1
Development Costs. In consideration of the development
activities to be undertaken by Developer hereunder, EVOVE will pay
Developer, Developer's costs plus a five percent
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(5%) bonus on all programmer/consultant/sub-contractor
costs.
6.2
Payment Process. Unless otherwise agreed in writing,
Payments will be made within thirty (30) days after invoicing by
Developer.
7.
WARRANTIES AND INDEMNIFICATION
7.1
General Warranty. Each party warrants that it has full power
and authority to enter into this Agreement, perform its obligations
hereunder, and grant the rights to the other party granted
herein.
7.2
Media Warranty. Developer warrants that the physical media
of the disks supplied to EVOVE shall contain true and correct
copies of the Software developed under this Agreement and shall be
free from defects in workmanship and materials. EVOVE's remedy for
breach of the foregoing warranty shall be replacement of the
defective disk.
7.3 No
Infringement. Developer warrants that the Deliverables
delivered to EVOVE hereunder do not violate or infringe any patent,
copyright, trade secret or other proprietary right of any third
party, and that Developer is not aware of any facts upon which such
a claim for infringement could be based.
7.4
Infringement Defense. Developer will defend any claim, suit,
or proceeding brought against EVOVE or its customers insofar as it
is based on a claim arising out of Developer's breach of Section
7.3, above; provided that Developer is notified promptly in writing
of
