SOFTWARE DEVELOPMENT & SERVICES AGREEMENT
This Software Development & Services Agreement (the “Agreement”) is entered into as of the date of the last signature below (the “Effective Date”), by and between App Creator Studios (the “Provider”) and the client identified in the applicable proposal, statement of work, order form, or signature page (the “Client”). Provider and Client may each be referred to individually as a “Party” and collectively as the “Parties.”
This Agreement, together with any applicable proposal, statement of work, order form, approved change order, payment schedule, or project specification (collectively, the “Project Documents”), governs the software development, design, consulting, hosting, deployment, maintenance, and related services provided by Provider to Client.
In consideration of the mutual promises contained herein, the Parties agree as follows:
1. SERVICES AND PROJECT SCOPE
1.1 Services
Provider shall provide the software development, design, consulting, implementation, testing, deployment, hosting, maintenance, or other services expressly identified in the applicable Project Documents (the “Services”).
The specific features, functionality, platforms, integrations, deliverables, milestones, estimated timelines, fees, and other project requirements shall be defined in the applicable proposal or Statement of Work (the “SOW”).
1.2 Scope of Work
Only the Services and deliverables expressly identified in the applicable SOW are included in the project fee.
Any functionality, feature, integration, design, platform, modification, enhancement, content creation, third-party service, administrative functionality, or other work not expressly identified in the applicable SOW shall be considered Out-of-Scope Work.
Provider shall have no obligation to perform Out-of-Scope Work unless the Parties agree in writing to the applicable additional fees, timeline adjustments, and requirements.
1.3 Project Documents
The applicable proposal and/or SOW may contain project-specific information, including:
- Project objectives;
- Functional requirements;
- Features and functionality;
- Design requirements;
- Platforms;
- Integrations;
- Development milestones;
- Estimated timelines;
- Payment schedules;
- Hosting arrangements;
- Maintenance arrangements; and
- Other project-specific requirements.
In the event of a conflict between this Agreement and an SOW, this Agreement shall control unless the SOW expressly identifies the specific provision of this Agreement that it is intended to modify.
2. CLIENT RESPONSIBILITIES
Client agrees to reasonably cooperate with Provider throughout the project and shall timely provide all information, materials, approvals, credentials, access, content, decisions, and other items reasonably required for Provider to perform the Services.
Client is responsible for:
- Providing accurate and complete project requirements;
- Providing content, images, logos, documents, data, credentials, API keys, and other materials required for development;
- Maintaining required third-party accounts;
- Providing access to Apple, Google, AWS, payment gateways, APIs, domains, hosting platforms, and other third-party services when required;
- Reviewing designs, builds, and deliverables within a reasonable period;
- Providing timely approvals and feedback;
- Ensuring that Client-provided materials may legally be used for the project; and
- Making timely business and technical decisions necessary for the project.
Provider shall not be responsible for delays, additional costs, or inability to complete any portion of the Services caused by Client’s failure to provide required information, access, approvals, materials, credentials, decisions, or feedback.
Any delay caused by Client shall automatically extend the applicable project timeline by the period reasonably necessary to accommodate the delay and, where applicable, remobilize the development team.
3. PROJECT TIMELINE
Any project timeline provided by Provider is an estimate unless the applicable SOW expressly identifies a deadline as a guaranteed contractual delivery date.
Project timelines are dependent upon:
- Timely Client feedback;
- Timely Client approvals;
- Availability of required third-party services;
- Availability of required credentials and accounts;
- Timely payments;
- Scope remaining substantially unchanged; and
- Circumstances outside Provider’s reasonable control.
Provider shall not be liable for delays resulting from Client delays, third-party services, app-store reviews, hosting providers, payment processors, API providers, force majeure events, or other circumstances outside Provider’s reasonable control.
4. FEES AND PAYMENT
4.1 Project Fees
Client agrees to pay Provider the fees identified in the applicable proposal, SOW, invoice, or payment schedule.
Unless expressly stated otherwise in writing, fees are based upon the scope and requirements identified at the time the applicable proposal or SOW is approved.
4.2 Payment Schedule
Client agrees to make payments according to the payment schedule established in the applicable Project Documents.
Provider shall not be required to commence a milestone, phase, deployment, hosting service, or other portion of the Services until the applicable payment has been received.
4.3 Late or Unpaid Payments
If Client fails to make any payment when due, Provider may, upon written notice:
- Suspend development;
- Suspend access to project environments;
- Delay delivery of additional milestones;
- Suspend deployment;
- Suspend hosting or maintenance services where applicable;
- Withhold delivery of unpaid deliverables; and/or
- Exercise any other rights available under this Agreement or applicable law.
Any delay resulting from non-payment shall extend the applicable project timeline accordingly.
Client remains responsible for all undisputed amounts accrued before suspension or termination.
5. NON-REFUNDABLE PAYMENTS AND COMPLETED WORK
5.1 Earned Payments
Client acknowledges that Provider commits personnel, development resources, design resources, infrastructure, software, third-party services, administrative resources, and other costs based upon Client’s approval of the project and payment schedule.
Accordingly, payments attributable to Services performed, milestones completed, deliverables provided, resources committed, or work commenced are earned and non-refundable, except where a refund is expressly required by applicable law or expressly agreed to in writing by Provider.
5.2 No Refund Following Delivery or Acceptance
Once a deliverable, milestone, phase, or other contracted Service has been provided to Client and accepted, approved, signed off, or otherwise made available for Client’s use or review, the corresponding payment shall be considered earned and shall not be refundable.
Client’s subsequent change of mind, business strategy, budget, preference, lack of anticipated revenue, failure to use the Software, or decision to discontinue the project shall not create a right to a refund for Services already performed.
5.3 Client Cancellation
If Client elects to cancel or discontinue the project for reasons unrelated to Provider’s uncured material breach, Client shall remain responsible for:
- All completed Services;
- All completed or accepted milestones;
- Work performed through the effective cancellation date;
- Non-cancellable commitments;
- Third-party costs;
- Hosting commitments;
- Approved change orders;
- Other amounts contractually incurred on Client’s behalf.
Any remaining balance for completed or committed Services shall become immediately due in accordance with the applicable Project Documents.
6. CLIENT SATISFACTION, REVIEW AND ACCEPTANCE
6.1 Review Process
Provider intends to ensure that Client receives the deliverables described in the applicable SOW and has a reasonable opportunity to review and provide feedback during the applicable project phase.
Provider shall provide Client with applicable designs, builds, demonstrations, test versions, or other deliverables for review according to the project schedule.
6.2 Sign-Off
Client shall review each applicable milestone or deliverable and provide written approval or specific written notice identifying material deviations from the agreed Specifications.
Client’s approval, sign-off, confirmation of acceptance, or use of a deliverable shall constitute acceptance of that deliverable.
6.3 Acceptance of Conforming Deliverables
A deliverable shall be considered accepted when:
- Client provides written approval;
- Client signs off on the applicable milestone;
- Client begins using the deliverable for its intended purpose; or
- Client fails to identify a material deviation from the agreed Specifications within five (5) business days after delivery or submission for review.
Minor cosmetic preferences, subjective design preferences, requests for new functionality, or changes to previously approved requirements shall not constitute rejection of a conforming deliverable.
6.4 Defects
If Client identifies a reproducible defect demonstrating that a deliverable materially fails to conform to the agreed Specifications, Provider shall use commercially reasonable efforts to correct the defect in accordance with the applicable warranty and support provisions.
Client’s identification of a valid defect shall not create a right to cancel the entire project or obtain a refund for unrelated completed Services.
7. CHANGE REQUESTS AND SCOPE CHANGES
Client may request modifications to the project scope.
Any requested change that is outside the agreed Specifications may result in additional fees and/or an extension of the project timeline.
Provider shall communicate the anticipated impact of a material change to Client before commencing the additional work.
No material change shall be considered approved unless confirmed in writing by the Parties.
Examples of potential Out-of-Scope Work include, without limitation:
- New features;
- Additional screens;
- Additional user roles;
- New integrations;
- New APIs;
- Additional payment methods;
- Additional administrative functionality;
- Additional platforms;
- Redesigns after approval;
- Changes to previously approved functionality;
- New reports or dashboards;
- Additional third-party services;
- Additional app-store requirements; and
- Material changes to previously approved requirements.
Provider shall not be obligated to perform additional work without corresponding compensation where such work materially expands the agreed project scope.
8. THIRD-PARTY SERVICES AND COSTS
Client acknowledges that software projects may require third-party products, services, licenses, subscriptions, infrastructure, accounts, or platforms.
Examples may include:
- Apple Developer services;
- Google Play services;
- Amazon Web Services;
- Cloud hosting;
- Payment processors;
- SMS providers;
- Email providers;
- Maps and location services;
- Analytics platforms;
- AI services;
- APIs;
- Software licenses;
- Domain registrations;
- SSL certificates;
- Plugins;
- Themes;
- Fonts;
- Stock assets; and
- Other third-party services.
Unless expressly included in the applicable SOW, all third-party fees and charges are the responsibility of Client.
Provider shall not be responsible for third-party pricing changes, outages, account suspensions, API changes, policy changes, service discontinuation, approval decisions, or other circumstances controlled by the third-party provider.
Client understands that Provider cannot guarantee the continued availability, pricing, functionality, or policies of third-party services.
9. HOSTING AND INFRASTRUCTURE
9.1 Hosting Services
If Client purchases hosting or infrastructure services from Provider, those services shall be governed by the applicable hosting terms, proposal, invoice, or SOW.
Hosting fees may include infrastructure, server resources, monitoring, configuration, security services, backups, bandwidth, storage, maintenance, administration, and other infrastructure-related costs as specified in the applicable Project Documents.
9.2 Hosting Commitment
Where Client has purchased a prepaid hosting term, the hosting fee represents a committed service and infrastructure allocation for the applicable hosting period.
Prepaid hosting fees are non-refundable and shall not be subject to pro-rata refund, credit, chargeback, or reversal solely because Client subsequently chooses to move the Software to another hosting provider, ceases using the Software, changes business direction, terminates development, or otherwise elects not to use the remaining hosting period, except where a refund is expressly required by applicable law.
9.3 Hosting Is Separate From Development
Hosting fees are separate from software development fees unless expressly stated otherwise in the applicable SOW.
Termination or cancellation of development Services does not automatically terminate or create a refund right for prepaid hosting services.
9.4 Third-Party Infrastructure
Where Provider uses third-party infrastructure, Client acknowledges that Provider may be required to pay or commit to third-party infrastructure costs on Client’s behalf.
Client remains responsible for such costs according to the applicable Project Documents.
10. INTELLECTUAL PROPERTY
10.1 Client Ownership of Final Deliverables
Subject to Client’s payment in full of all amounts due for the applicable project and deliverables, Client shall own the project-specific deliverables expressly identified in the applicable SOW and created specifically for Client by Provider.
10.2 Ownership Upon Full Payment
Any transfer or assignment of ownership contemplated by this Agreement shall become effective only after Provider has received full payment of all amounts due for the applicable Deliverables.
Until full payment is received, Provider retains all rights in the unpaid Deliverables to the maximum extent permitted by law.
10.3 Background Technology
Notwithstanding anything to the contrary, Provider shall retain all right, title, and interest in and to its pre-existing and independently developed technology, tools, frameworks, libraries, templates, reusable components, methodologies, processes, know-how, utilities, scripts, development systems, generic code, internal systems, and other materials that are not uniquely created for Client (collectively, “Background Technology”).
Client shall not acquire ownership of Provider’s Background Technology merely because such Background Technology is incorporated into or used in connection with the Software.
To the extent necessary for Client to use the completed Software, Provider grants Client a non-exclusive, perpetual license to use Background Technology incorporated into the final Deliverables solely as part of the Software.
10.4 Third-Party and Open-Source Materials
Third-party and open-source components remain subject to their respective licenses and terms.
Provider does not transfer ownership of third-party software or materials that Provider does not own.
11. CLIENT MATERIALS
Client represents and warrants that it owns, controls, or has obtained sufficient rights and permissions to use all materials, content, data, images, trademarks, logos, documents, software, media, and other materials provided to Provider.
Client shall be responsible for claims arising from Client-provided materials where such claims result from Client’s lack of rights or authorization to provide or use those materials.
12. CONFIDENTIALITY
Each Party may receive confidential or proprietary information belonging to the other Party.
Each Party agrees to:
- Keep Confidential Information confidential;
- Use Confidential Information solely for purposes of performing or receiving the Services;
- Limit access to persons who reasonably require access; and
- Take reasonable measures to prevent unauthorized disclosure.
Confidential Information does not include information that:
- Is publicly available through no breach of this Agreement;
- Was lawfully known before disclosure;
- Is independently developed without use of Confidential Information;
- Is lawfully received from a third party without confidentiality restrictions; or
- Must be disclosed by law, court order, or governmental authority.
These confidentiality obligations shall survive termination of this Agreement.
13. WARRANTIES AND LIMITED SUPPORT
13.1 Limited Warranty
Provider warrants that, for the warranty period identified in the applicable SOW, the final Software will substantially conform to the agreed Specifications.
Unless otherwise stated in the applicable SOW, the warranty period shall be thirty (30) calendar days following acceptance or launch, whichever occurs first.
13.2 Warranty Remedy
Provider’s primary obligation for a valid warranty claim shall be to use commercially reasonable efforts to correct the reproducible defect so that the Software substantially conforms to the agreed Specifications.
13.3 Warranty Exclusions
The warranty does not cover:
- New features;
- Scope changes;
- Design preferences;
- Changes requested after approval;
- Third-party services;
- Third-party outages;
- Operating-system changes;
- Browser changes;
- App-store policy changes;
- Client modifications;
- Unauthorized modifications;
- Client-provided content;
- Hosting issues outside Provider’s control;
- Security incidents caused by Client or third parties; or
- Issues caused by services or systems outside Provider’s reasonable control.
13.4 Ongoing Maintenance
Unless expressly included in the applicable SOW, ongoing maintenance, enhancements, monitoring, support, updates, and future development are separate Services and may be subject to additional fees.
The warranty period described in Section 13.1 is a limited warranty and defect-correction period only, and does not include general or unlimited support.
14. APPLE APP STORE, GOOGLE PLAY AND THIRD-PARTY APPROVALS
Provider may assist Client with application submission and deployment to applicable app stores and third-party platforms.
However, Client acknowledges that Provider does not control the approval process of Apple, Google, or any other third-party platform.
Provider does not guarantee:
- App Store approval;
- Google Play approval;
- A particular review timeframe;
- Continued app-store availability;
- Approval of particular monetization methods;
- Approval of subscriptions or payment systems; or
- Continued compliance with future third-party platform policies.
Where a rejection results from a change in platform policy or a requirement outside the agreed project scope, additional work may be subject to additional fees.
15. CLIENT BUSINESS RESPONSIBILITY
Provider is a software development and technology services provider and does not provide legal, tax, accounting, regulatory, financial, or compliance advice unless expressly agreed in writing.
Client is responsible for determining whether its business, content, products, services, data practices, payment practices, and intended use of the Software comply with applicable laws and regulations.
Provider does not guarantee that the Software will generate revenue, users, sales, downloads, investment, profits, or other business results.
16. DATA AND PRIVACY
Client is responsible for determining the types of personal information collected through the Software, the purposes for which such information is collected, and the legal requirements applicable to Client’s business.
Client is responsible for providing appropriate privacy policies, terms of use, disclosures, consents, and other legally required documentation unless Provider has expressly agreed in writing to provide such services.
17. INDEPENDENT CONTRACTOR
Provider is an independent contractor.
Nothing in this Agreement creates an employment relationship, partnership, joint venture, agency, fiduciary relationship, or other similar relationship between the Parties.
Provider’s personnel, employees, contractors, and consultants shall not be considered employees of Client.
Neither Party shall have authority to bind the other Party unless expressly authorized in writing.
18. TERMINATION
18.1 Termination for Material Breach
Either Party may terminate this Agreement if the other Party materially breaches the Agreement and fails to cure such breach within the applicable cure period following written notice.
Except where a shorter period is reasonably necessary due to the nature of the breach, the defaulting Party shall have twenty (20) business days to cure a material breach.
18.2 Client Cancellation
Client may request cancellation of the project; however, cancellation shall not relieve Client of responsibility for:
- Completed work;
- Accepted milestones;
- Work performed through termination;
- Approved change orders;
- Third-party costs;
- Hosting commitments;
- Non-cancellable commitments; and
- Other amounts properly due under this Agreement.
Payments for Services already performed or commitments already incurred shall remain non-refundable except where otherwise required by applicable law.
18.3 Provider Termination
Provider may suspend or terminate the Services if Client:
- Fails to make required payments;
- Repeatedly fails to provide required information or approvals;
- Materially expands the project without agreeing to applicable additional fees;
- Engages in unlawful activity;
- Materially breaches this Agreement and fails to cure the breach;
- Becomes insolvent or enters bankruptcy proceedings; or
- Otherwise materially interferes with Provider’s ability to perform the Services.
19. DISPUTE RESOLUTION AND MANDATORY CURE PERIOD
19.1 Written Notice of Dispute
Before commencing litigation, arbitration, chargeback proceedings, or other formal escalation concerning a project dispute, Client shall provide Provider with written notice describing:
- The specific issue;
- The applicable contractual or project requirement;
- The requested remedy; and
- Any supporting documentation reasonably necessary to evaluate the dispute.
19.2 Thirty-Business-Day Resolution Period
Except where prohibited by applicable law or where immediate legal relief is necessary to prevent irreparable harm, the Parties shall first attempt in good faith to resolve the dispute internally.
Provider shall have thirty (30) business days from receipt of the written dispute notice to investigate, respond, and, where appropriate, correct a verified issue that falls within Provider’s contractual obligations.
Client agrees not to prematurely escalate a dispute solely because a response or resolution has not occurred immediately, provided Provider is actively engaging in the resolution process.
19.3 Scope-Based Disputes
If Client believes that the Software does not conform to the agreed scope, Client must identify the specific portion of the agreed Specifications that Client believes has not been satisfied.
A request for functionality not contained in the applicable SOW shall not constitute a failure to deliver the agreed Services.
19.4 No Automatic Refund or Chargeback
A disagreement concerning project scope, business performance, Client preference, or a requested change shall not automatically create a right to a refund or payment reversal.
Client agrees to first use the contractual dispute-resolution process before initiating a payment dispute, chargeback, or other payment reversal, except where applicable law or the applicable payment provider rules prohibit such an agreement.
20. CHARGEBACKS AND PAYMENT REVERSALS
Client acknowledges that Provider may incur significant development, staffing, infrastructure, administrative, payment-processing, and third-party expenses in reliance upon Client’s authorized payment.
Client agrees that a payment shall not be reversed, charged back, or disputed merely because:
- Client changes its mind;
- Client no longer requires the Software;
- Client changes its business strategy;
- Client elects not to launch or use the Software;
- Client has not achieved anticipated business results;
- Client requests functionality outside the agreed scope;
- Client has received and accepted the applicable deliverables; or
- Client terminates the project for reasons unrelated to Provider’s uncured material breach.
Before initiating a payment dispute, Client agrees to provide Provider with written notice and allow Provider the opportunity to investigate and resolve the matter through the dispute-resolution procedure stated in this Agreement, to the extent permitted by applicable law and the applicable payment processor’s rules.
If a chargeback or payment reversal is initiated in violation of this Agreement, Provider reserves all rights and remedies available under applicable law, including the right to provide the payment processor with relevant project records, invoices, approvals, communications, deliverables, acceptance records, and other documentation demonstrating the Services performed and amounts owed.
21. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, Provider shall not be liable for any indirect, incidental, special, consequential, exemplary, punitive, or similar damages, including loss of profits, revenue, business opportunities, goodwill, anticipated savings, data, or business interruption arising out of or relating to the Services or this Agreement.
To the maximum extent permitted by applicable law, Provider’s aggregate liability arising out of or relating to this Agreement shall not exceed the total amount actually paid to Provider by Client under the applicable SOW during the twelve (12) months preceding the event giving rise to the claim.
Nothing in this Section shall exclude liability that cannot lawfully be excluded or limited under applicable law.
22. FORCE MAJEURE
Provider shall not be liable for delay, failure, interruption, or inability to perform caused by circumstances beyond Provider’s reasonable control, including:
- Natural disasters;
- War;
- Terrorism;
- Government actions;
- Labor disruptions;
- Internet outages;
- Cloud-service outages;
- Hosting provider failures;
- Cybersecurity incidents;
- Widespread infrastructure failures;
- Third-party API failures;
- App-store outages or delays;
- Payment processor failures;
- Changes in applicable law or platform policies; or
- Other events beyond Provider’s reasonable control.
The affected deadline shall be extended for a reasonable period corresponding to the impact of the event.
23. NO WAIVER
A Party’s failure to enforce any provision of this Agreement shall not constitute a waiver of that provision or any other right.
Any waiver must be provided in writing by the Party granting the waiver.
24. ASSIGNMENT
Client may not assign or transfer this Agreement or its rights or obligations without Provider’s prior written consent, except in connection with a merger, acquisition, or sale of substantially all of Client’s assets.
Provider may assign this Agreement to an affiliate, successor, purchaser of substantially all of its assets, or other entity in connection with a corporate transaction.
25. SEVERABILITY
If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
The invalid or unenforceable provision shall be modified to the minimum extent necessary to make it enforceable while preserving the Parties’ original intent to the maximum extent permitted by law.
26. ENTIRE AGREEMENT
This Agreement, together with the applicable proposal, SOW, payment schedule, exhibits, and approved written change orders, constitutes the entire agreement between the Parties concerning the subject matter hereof.
It supersedes all prior or contemporaneous discussions, representations, proposals, emails, negotiations, understandings, and agreements concerning the same subject matter, except for documents expressly incorporated into the applicable Project Documents.
27. AMENDMENTS
No amendment, modification, or waiver of this Agreement shall be effective unless made in writing and approved by authorized representatives of both Parties.
Project-specific changes shall be documented through an updated SOW, change order, written approval, or other written confirmation agreed upon by the Parties.
28. NOTICES
Any formal notice required under this Agreement shall be delivered by email or another written method reasonably capable of establishing delivery to the contact information identified in the applicable Project Documents.
Either Party shall promptly notify the other Party of any material change to its contact information.
29. ELECTRONIC SIGNATURES
Electronic signatures, including signatures executed through recognized electronic-signature platforms, shall be deemed originals and shall have the same legal effect as handwritten signatures to the maximum extent permitted by applicable law.
This Agreement may be executed in counterparts, each of which shall be considered an original and all of which together constitute one agreement.
30. SURVIVAL
The provisions relating to payment obligations, intellectual property, confidentiality, third-party costs, hosting commitments, indemnification, limitation of liability, dispute resolution, governing law, and any other provisions which by their nature should survive termination shall survive expiration or termination of this Agreement.
31. GOVERNING LAW AND VENUE
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah, without regard to conflict-of-law principles.
Subject to the dispute-resolution provisions of this Agreement, the Parties consent to the jurisdiction and venue of the state and federal courts located in the applicable county and state designated in the applicable Project Documents, unless otherwise required by applicable law.
The prevailing Party in an action or proceeding arising out of or relating to this Agreement shall be entitled to seek recovery of its reasonable attorneys’ fees and costs to the extent permitted by applicable law.
32. CLIENT ACKNOWLEDGMENT
By signing this Agreement, Client acknowledges and agrees that:
- Client has reviewed the applicable project scope and Specifications;
- Client understands what Services and Deliverables are included;
- Client understands that additional functionality may require additional fees;
- Client understands that payments for completed, delivered, accepted, or committed Services are non-refundable except where otherwise required by applicable law;
- Client understands that third-party costs are Client’s responsibility unless expressly included in the SOW;
- Client understands that prepaid hosting is a committed service and is non-refundable except where otherwise required by applicable law;
- Client understands that app-store and third-party approvals are not guaranteed;
- Client understands that Provider does not guarantee business, revenue, or investment results;
- Client agrees to use the dispute-resolution process before escalating a contractual dispute, to the extent permitted by applicable law; and
- Client has had a reasonable opportunity to review this Agreement and seek independent legal advice before signing.
33. SIGNATURES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.