Standard Software Development Terms
Standard Software Development Terms v5 dated 2 Feb 2022
The following terms apply to the development and supply of software by Roam Creative Ltd (“Roam”) to the Customer, and will form part of the Agreement between the parties, in conjunction with the Estimate.
‘Agreement’ means these Standard Software Development Terms and the Estimate;
‘Confidential Information’ means any confidential or proprietary information of a party that is disclosed in any manner and in any media to the other party in connection with or as a result of discussions related to this Agreement at any time, and which at the time of disclosure, either: (a) is marked as being “Confidential” or “Proprietary”; (b) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing party; or (c) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information of the disclosing party. Specifically, Confidential Information includes: (i) the existence, terms and conditions of this Agreement; (ii) all types of proprietary technical or business information, including but not limited to data, know-how, formulas, algorithms, processes, designs, drawings, schematics, plans, strategies, specifications, requirements, standards and documentation, reports, pricing, market, marketing or demographic information, software, trade secrets, research, analyses, inventions, ideas and other types of nonpublic information, but excludes any information that is: (iii) in the public domain through no fault of the receiving party or of any other person or entity that is similarly contractually or otherwise obligated; (iv) obtained independently from a third party without an obligation of confidentiality to the disclosing party and without breach of this Agreement; or (v) independently developed by the receiving party without the use of or reference to the Confidential Information of the disclosing party;
‘Customer’ means the customer to whom the Estimate is addressed;
‘Deliverable’ means any tangible or intangible documents, information, products, goods, or software that is expressly identified as a “Deliverable” in an Estimate, including the software and Documentation;
‘Development’ means the development of the Software (and specifications) to use on the System as described in the Estimate in accordance with the agreed specifications that are expressly set out and identified as a “specification” in an Estimate;
‘Development Testing’ means the tests and checks of the Software and Documentation provided by Roam to identify any unacceptable defects;
‘Documentation’ means the documents relating to the Software and Development supplied by Roam from time to time;
‘Equipment’ means the devices and platforms licenced to the Customer by Roam in order that the Customer may use the Software described in the Estimate;
‘Estimate’ means the scoping document and/or statement of work detailing the Development services to be supplied to the Customer;
'Force Majeure' event means any event beyond the Customer’s or Roam’s control, including, without limitation, sabotage, failure or delays in transportation or communication, failures or substitutions of equipment, incapacitation of national or local access to electricity or the internet, terror, disease or pandemic, labour disputes, accidents, shortages of labour, fuel, raw materials or equipment, or technical failures;
‘Intellectual Property’ means: (a) all inventions, invention disclosures, improvements, recipes, trade secrets, proprietary information, proprietary processes, methodologies or formulae, templates, trade secrets, industrial designs, licences, know-how, technology, and technical data; (b) specifications, designs, drawings, and other literary works; (c) customer lists, databases and data collections, and other confidential or proprietary business information; and (d) all documentation related to any of the foregoing.
‘Intellectual Property Rights’ means any and all forms of legal rights and protections that may be obtained for, or may pertain to the Intellectual Property, including, without limitation, all right, title, and interest arising under applicable common and statutory law: (a) patents; (b) copyrights and all other rights corresponding thereto; (c) trademarks; (d) trade secrets; (e) know-how; (f) industrial designs; (g) any similar, corresponding, or equivalent rights relating to intangible Intellectual Property; and (h) applications, registrations, issuances, divisions, continuations, renewals, reinsurances, and extensions of the foregoing.
‘Maintenance’ means any agreement or proposal by Roam to provide ongoing software maintenance, fixes, upgrades and improvements;
‘Roam’s Libraries’ means Roam’s pre-existing server code and copyright material including the Droplet and DropSense Internet of Things platforms, the Sauce SDK and other intellectual property previously created by Roam;
‘Roam Owned IP’ means any Intellectual Property Right in any part of the Deliverables which is either: (a) materials Roam lawfully owned prior to the date of this Agreement; (b) materials acquired by Roam on or after the date of this Agreement; (c) derivative works or adaptations of Roam Owned Materials created by Roam; (d) materials developed by Roam other than in the course of the performance of its obligations under this Agreement including Australian, New Zealand, and foreign Intellectual Property Rights in such Roam Owned Materials; (e) any derivative, adaptive and/or residual ideas and Materials which were created based on the Software or Deliverables, but does not contain any Intellectual Property rights assigned under clause 5.1 or an Estimate; (f) Roam’s Intellectual Property used in creating any Deliverables herein, including Roam’s Libraries; and (g) Roam’s Confidential Information as defined in this Agreement.
“Sauce SDK” means Roam’s proprietary “Sauce” development software, and its associated design templates and development libraries;
‘Software’ means software and applications expressly specified in the Estimate as a Deliverable, and includes related Documentation, but excludes source code; and
‘System’ means the platform or Equipment on which the Software is to be used as agreed prior to or as part of the undertaking of the Development.
2. CUSTOMER’S RIGHTS
2.1. If: (a) the Customer copies, installs or uses the Software or executes this Agreement; and (b) pays the applicable licence fees, Roam grants the Customer a personal, non-exclusive and non-transferable right and licence to use the Software on the System on the terms set out in this Agreement.
2.2. Roam has, or agrees to, provide the Customer with a written Estimate detailing the Development scope, deliverables, assumptions, timeframes and costs.
3. CUSTOMER’S RESPONSIBILITIES
3.1. The Customer: 3.1.1. May use the current version of the Software on the System and in accordance with the Documentation until new versions or enhancements become available to use instead; 3.1.2. Must carefully check the final Development copy/graphics for errors and advise Roam; 3.1.3. May make copies of the Documentation for its own internal use provided that all copies include a statement acknowledging Roam’s proprietary rights; 3.1.4. Must advise Roam of any defects in a timely manner and provide Roam reasonable assistance to resolve them; and 3.1.5. Acknowledges that if a Deliverable contains the Sauce SDK, it may contain open source software.
3.2. The Customer must not, must not allow a third party to and must not attempt to: 3.2.1. Copy the Software (other than is reasonably required for backups, as otherwise permitted by this Agreement or as required by law); 3.2.2. Transfer the Software to another System or non-licenced or approved Equipment; 3.2.3. Incorporate the Software into other products or non-licensed systems; 3.2.4. Assign, mortgage, lease, sub-licence any of the Customer’s rights or obligations under this Agreement or otherwise make the Software available to a third party; 3.2.5. Alter, modify, tamper with, reverse engineer, decompile, disassemble, create derivative works based on or imitate all or part of the Software without the prior express and written agreement of Roam; or 3.2.6. Remove any copyright or disclaimer notification on the Software or Documentation and any copies must bear the same notification as the original.
4. SOFTWARE SECURITY
4.1. The Customer must ensure that its employees/agents comply with the provisions of this Agreement and that no unauthorised use is made of the Software or Development.
4.2. The Customer must notify Roam immediately if it becomes aware of or suspects any: 4.2.1. Unauthorised access, theft, copying, tampering, reverse engineering, or use of the Software, Development or Documentation; or 4.2.2. Unauthorised use or disclosure of Confidential Information (as defined in Clause 6).
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Except as expressly provided in an Estimate, all Intellectual Property Right which may subsist in any Deliverable newly created and delivered by Roam to Customer under this Agreement (excluding any Roam Owned IP) will vest absolutely and exclusively to the Customer upon payment in full by the Customer of all fees due and owing under the applicable Estimate under which the Deliverables are provided. Subject to the payment of all fees, Roam hereby irrevocably assigns, and shall assign, to Customer without additional consideration all of Roam’s right, title and interest in and to such Deliverable except with regard to any Roam Owned IP incorporated therein. To the extent that any such Deliverable contains Roam Owned IP, Roam shall notify Customer in writing in the applicable Estimate executed by an authorized representative of both parties.
5.2. Ownership of any Roam Owned IP in any part of the Software remains with Roam, but Roam grants the Customer and its affiliates a non-exclusive, perpetual, royalty-free, transferrable, sublicensable, worldwide licence to use, make derivative works of, sell, offer for sale, all Intellectual Property rights in Roam Owned IP that is included in one or more of the Deliverables solely as incorporated in such Deliverable and for use in that Deliverable and not in any separate form or format. All Roam Owned IP shall be considered and treated as Confidential Information and the Intellectual Property Rights of Roam.
5.3. The licence granted in clause 5.2 does not include the right to use any bug fixes, patches, or upgrades that Roam delivers to Customer under any Estimate for maintenance and support services unless and until Customer has made payment in full for all such maintenance and support services under the applicable Estimate(s) and such licence will be valid only during the term and any extension of the maintenance and support services.
5.4. Diagnostics, tools, test equipment and other items used in the performance of Services will remain the exclusive property of Roam. No title or licence to such items is granted to Customer. To the extent Roam performs services at a Customer location or other location requested by Customer, Customer shall allow Roam immediate access to and recovery of all such items upon Roam’s request.
5.5. Should the Customer intend to access and make use of Roam’s Libraries in the course of the Development, the Customer will be required to enter into a software licence with Roam and pay further applicable software licence fees. In doing so, Roam will grant the Customer a personal, non-exclusive and non-transferable right and software licence to use Roam’s Libraries on the terms set out in this Agreement.
5.6. For the avoidance of doubt, the Customer agrees that it shall only ever own aspects of the Software or the Development specifically designed for the Customer and it shall not own the Equipment, Roam’s Libraries or Roam Owned IP and shall only ever have a license to use the Equipment and Roam’s Libraries in order to be able to make use of the Development and Software. Roam is the exclusive owner of, and retains all right, title, and interest in, the practical knowledge, techniques, skills and expertise of Roam whenever learned or gained, including during the term of this Agreement.
5.7. The Customer acknowledges that Roam may provide similar services to the Development to clients unrelated to the Customer and shall not be restricted from doing so.
5.8. Customer grants to Roam without warranty as to title, interference by third parties, or non-infringement of third-party rights, and Roam accepts, a perpetual, non-exclusive, fully-paid, royalty-free, transferrable, sublicensable, worldwide right and licence to use, adapt, make derivative works of, sell, and offer for sale, any portions of a Deliverable that (i) are not unique to Customer and do not identify Customer; (ii) do not contain Customer Content; (iii) do not include, and would not disclose to a reasonably skilled examiner, Customer Confidential Information; and (iv) are not material portions of the “look and feel” of the Deliverables as contemplated to be presented by Customer to the public.
5.9. If Customer provides Roam with any Intellectual Property owned by Customer, then Customer grants to Roam, and Roam accepts, a non-exclusive, royalty-free, limited licence to use and make derivative works of such material solely to provide services or deliverables under any applicable Estimate. Upon Customer’s written request after termination or expiration of any Estimate, such material will be promptly returned to Customer by Roam in a form and format acceptable to the Customer or, if the Customer so elects, will be destroyed.
6.1. Treatment and Protection. Each party agrees to: (a) hold in strict confidence all Confidential Information of the disclosing party; (b) use the Confidential Information of the disclosing party solely to perform or to exercise its rights under this Agreement; (c) not to transfer, display, convey or otherwise disclose or make available all or any part of Confidential Information of the disclosing party to any third party; (d) take all measures necessary to protect against the disclosure or use of the Confidential Information of the disclosing party as it takes to protect its own proprietary or confidential information (but in any case, no less than reasonable measures); and (e) promptly notify the other of the happening of any unauthorized disclosure or use of any Confidential Information of the disclosing party.
6.2. Duration. The obligations under this clause 6 will survive termination of this Agreement: (a) for five (5) years from the date of disclosure for Confidential Information other than trade secrets; and (b) indefinitely for information that the disclosing party identifies in writing as a trade secret to the receiving party.
6.3. Disclosures Required by Law. The receiving party may disclose the Confidential Information of the disclosing party in response to a valid court order, law, rule, regulation (including any securities exchange regulation), or other governmental action provided that: (a) the disclosing party is notified in writing, if legally permissible, prior to disclosure of the information; and (b) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.
6.4. Remedies Upon Breach. Each party agrees that the other party will have no adequate remedy at law if there is a breach or threatened breach of this clause 6 and, accordingly, that either party will be entitled to seek injunctive or other equitable relief to prevent or remedy such breach, without the necessity of proving actual damages or the requirement of posting a bond or other security.
6.5. Return or Destruction. Upon the termination or expiration of this Agreement or upon the earlier request of the disclosing party, the receiving party will: (a) at its own expense (i) promptly return to the disclosing party all tangible Confidential Information (and all copies thereof) of the disclosing party; or b) upon written request from the disclosing party, destroy such Confidential Information and provide the disclosing party with written certification of such destruction; and (b) cease all further use of the other party’s Confidential Information, whether in tangible or intangible form.
Notwithstanding the foregoing: (c) each party may keep one (1) copy of any Confidential Information that may be necessary to meet legal or regulatory requirements; and (d) the receiving party will not be required to return or destroy any Confidential Information of the disclosing party that has been retained as part of the receiving party’s standard information backup procedures.
7. SCOPING/ ESTIMATES/ DEPOSITS AND PAYMENT
7.1. In consideration of the Services to be performed and/or Deliverables to be provided by Roam, Customer will pay Roam the compensation as described in each applicable Estimate.
7.2. Payment of the net amount of an invoice, without offset or deduction, is due twenty (20) days from the date of Roam’s invoice, which shall be submitted to Customer on a monthly basis. Roam shall provide (in reasonable detail) the Services provided, any Deliverables provided, and an itemization of expenses incurred. In the event that Customer disputes any amounts (or any portion of an invoice) due to Roam under any invoice, Customer must notify Roam of any such dispute on or before the date that is ten days prior to the due date for payment under such invoice; otherwise, Customer waives its right to dispute any such charges due and owing to Roam under such invoice. All undisputed amounts shall continue to be due and payable as set forth in this clause.
7.3. Roam may in its commercially reasonable discretion change the terms of Customer’s credit, require payment before shipment or before beginning any work on any Services, upon written notice to Customer.
7.4. In addition to the foregoing, Customer shall pay Roam its actual agreed-upon out-of-pocket expenses as incurred by Roam in furtherance of its performance under an applicable Estimate, within thirty (30) days after receipt of Roam's invoice.
7.5. Unless expressly stated otherwise, all consideration (including charges or payments) payable under this Agreement has been calculated and is expressed as being exclusive of GST. Notwithstanding any other clause in this Agreement, if GST is imposed on any supply under this Agreement: (i) Customer must pay to Roam an amount equal to the GST payable on the supply, in addition to and at the same time as payment for the supply is required to be made under this Agreement; and (ii) Roam must provide the Customer with a valid tax invoice. The amount recoverable on account of GST under this clause by the Roam will include any fines, penalties, interest and other charges incurred as a consequence of late payment or other default by the Customer under this clause.
8. WARRANTY AND LIABILITY
8.1. Roam warrants that all Development services shall be performed in a workmanlike and professional manner.
8.2. The Development services, Software and Deliverables are provided on an “as is” and “as available” basis.
8.3. Subject to clause 8.5, Roam makes no warranty of any kind, whether express or implied: 8.3.1 in respect of the Development, Software or Documentation except as provided in Clause 8.1; 8.3.2 that the Deliverables (including Software) are error free or that the Customer will be able to operate the Deliverables (including Software) without problems or interruptions; 8.3.3 with regard to any third-party products, third-party content or any software, equipment, or hardware Customer may obtain from third parties.
8.4. To the extent permitted by law, Roam expressly excludes and disclaims any and all express and implied conditions, representations, warranties, terms and conditions, including any warranty of merchantability or fitness for a particular purpose or other provisions in respect of the Development, Software and Documentation that would otherwise be implied by law, custom, statute or otherwise into this Agreement.
8.5 Certain legislation may imply warranties or conditions, impose obligations or give statutory guarantees (together, Statutory Provisions) which cannot be excluded, restricted or modified except to a limited extent. If: (a) any Statutory Provisions in Australia (including the Competition and Consumer Act 2010 (Cth)) apply, notwithstanding any other provision of this Agreement, to the extent to which Roam is entitled to do so, Roam limits its liability in respect of any claim to: (i) in the case of services, at Roam’s option: (ii) the supply of the services again; or (iii) the payment of the cost of having the services supplied again; or (b) any Statutory Provisions in New Zealand, including under the Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA) apply, the parties agree that the effect of the provisions in the FTA (as permitted in accordance to section 43) and the CGA (as permitted in accordance to section 5D), will not apply to this Agreement.
8.6. To the extent permitted by law, each party excludes all liability for and damage, whether direct, indirect, special or consequential, arising out of or in any way related to this agreement (including any Estimate or other collateral agreement), even if advised of the possibility of such damages and regardless of the form in which any action is brought. In respect of Roam, this exclusion of liability also includes loss of data and any third party network operator, Internet or cloud computing service provider that is engaged by Roam to support the Development services.
8.7. To the extent permitted by law, each party’s aggregate cumulative monetary liability for all claims arising under or relating to this Agreement (including any order hereunder or other collateral agreement) notwithstanding the form (e.g., contract, tort, negligence, or otherwise) in which any action is brought (Claim), shall be limited and shall not exceed the amount paid by Customer during the twelve (12) month period preceding the events giving rise to the Claim under the Estimate under which the Claim arises.
8.8. The Customer is responsible for: 8.8.1. Ensuring that adequate back up and verification procedures are followed to protect its data from loss or corruption; 8.8.2. Obtaining all necessary approvals from relevant regulatory authorities in relation to the use of the Software and Development; 8.8.3. Providing Roam with reliable and accurate information for use in the Development; and 8.8.4. Providing Roam with fully tested back end services and sample API integration scripts for the Development.
9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION
9.1. The Customer will notify Roam immediately of any claim that may be brought or established against the Customer alleging that any Deliverable infringes any intellectual property rights of a third party (“Infringement Claim”).
9.2. If the Customer has complied with clause 8.8.2, Roam agrees to defend at its own expense any action brought against Customer to the extent that it is based on a claim that any Deliverable furnished by Roam to Customer infringes a patent, copyright, or trademark protected in the jurisdiction in which the Customer has its principle place of business, but only to the extent that the Customer: 9.2.1. Notifies Roam immediately when the Infringement Claim comes to the Customer’s attention; 9.2.2. Allows Roam sole control to negotiate, defend or settle the Infringement Claim; 9.2.3. Fully cooperates with Roam in the defence of the Infringement Claim; 9.2.4. Customer refrains from admitting liability or otherwise comprises the Infringement Claim in whole or in part without the express prior written permission of Roam.
9.3. If the Customer is unable to use the Software by virtue of an Infringement Claim, then the extent of the Customer’s remedies shall be at Roam’s discretion either to: 9.3.1. replace or modify the Software so that it is no longer infringing; or 9.3.2. obtain for the Customer the right to continue use of the Software and Deliverables free from any infringement Claim or liability for infringement; or 9.3.3. require Customer to return the Deliverable, and grant Customer a credit for the price paid for the Deliverable .
9.4. Where software is supplied to Roam by a third party or is sourced by Roam under licence, the extent of any indemnity given by Roam to the Customer is limited to that of the third party’s or licensor's obligations to or indemnification of Roam.
9.5. This clause 9 states the entire liability of Roam with respect to an infringement Claim, and Roam shall have no additional liability hereunder or otherwise with respect to any alleged or proven infringement.
9.6. Roam has no obligation or liability under this clause 9 with respect to any Infringement Claim which is based upon or results from: 9.6.1. any modification of the Deliverable by Customer or third party; 9.6.2 use of the Deliverable in violation of applicable law; 9.6.3. Customer’s failure to install or have installed changes, revisions or updates as instructed by Roam; or 9.6.4. compliance by Roam with Customer’s specifications, designs or instructions.
10. TERMINATION AND NON PERFORMANCE
10.1. Either party may terminate this Agreement by giving 14 days written notice if the other party fails to remedy any breach of this Agreement within 14 days of receiving a request from the other party to do so.
10.2. The Customer may terminate this Agreement where Roam fails to complete the Development by the Finish Date after first giving Roam one months’ notice in writing.
10.3. Termination of this Agreement for whatever reason by the Customer will be without prejudice to any accrued rights of either party.
10.4. On termination of this Agreement or following any act of insolvency by the Customer, it must cease to use the Software and Documentation and all of Roam’s obligations to the Customer cease.
10.5 Except in relation to the Customer’s payment obligations, neither party will be liable to the other for any failure or delay caused by any Force Majeure Event. Notwithstanding the foregoing, where a Force Majeure Event prevents, hinders or delays the Customer from receiving Services, but does not prevent, hinder or delay the performance by Roam of services in any material respect, the Customer must pay Roam for any Services completed.
11.1. Roam may engage subcontractors to perform any of its obligations under this Agreement, provided that such subcontractor(s) enter into obligations of confidentiality at least as onerous as those contained in this Agreement.
12. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
12.1. This Agreement: 12.1.1. Constitutes the entire agreement of the parties as to its subject matter and supersedes all prior representations, proposals, discussions, agreements and communications, whether oral or in writing (including any confidentiality or non-disclosure agreement entered prior to the date of this Agreement, which it replaces in its entirety); and 12.1.2. May only be altered in writing, signed by both parties.
12.2. If any of these terms are held to be invalid or unenforceable for any reason then the remaining terms will continue in full force.
12.3. In the event of a conflict of terms in this Agreement, the terms in the applicable Estimate take precedence over the terms set out in these Standard Software Development Terms.
13. NON-SOLICITATION OF ROAM EMPLOYEES
13.1. For the duration of this agreement and for a period of six months after the completion of the Development, the Customer shall not directly or indirectly engage any Roam employee, or be connected with (as an employer or in any other capacity) any Roam employee.
14. MARKETING AND PROMOTION
14.1 Following completion of the Development Roam is granted the right to use the Customer’s name and service marks together with information about the Development in any advertising, marketing, publicity, or proposal.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed under the law of New Zealand and each party irrevocably submits to its exclusive jurisdiction of New Zealand Courts.
16. DEVELOPMENT TESTING AND SUPPORT
16.1. Where in Roam’s opinion it has completed satisfactory Development Testing then the resolution of any subsequent issues will be charged on a time and materials basis.
17. DISPUTE RESOLUTION
17.1. Without preventing either party from seeking immediate injunctive relief in the case of any breach or threatened breach of this Agreement, any dispute arising in relation to this Agreement will be dealt with in accordance with the following procedure: a. Negotiation: The parties shall make genuine efforts to resolve the dispute by negotiation between them (ensuring the dispute is internally escalated to the appropriate levels of management as required). b. Mediation: If the parties fail to negotiate a resolution to the dispute within 14 days they shall then appoint a mediator approved by LEADR (Lawyers Engaged in Alternative Dispute Resolution) and attempt to resolve the dispute by mediation. The costs and expenses of the mediator shall be shared by the parties equally.
18.1. Either party may send a notice to the other’s last postal address, fax number or email address and it will be deemed to be delivered five days after the date of posting or if sent by fax or email when the transmission is successfully completed.