Software Development & Commercial Agreement
This framework is adapted to each project after Avetco has reviewed the idea and completed follow-up questions with the client. The final project agreement records exactly what will be built, what it will cost, how it will be accepted and how IP will be handled.
No product development starts merely because an idea has been submitted. Avetco begins the agreed development work only after the project-specific commercial agreement has been agreed by both parties and any stated commencement conditions have been met.
1. Parties and project
This Software Development & Commercial Agreement (Agreement) is between Avetco Pty Ltd (Avetco) and the client identified in Schedule 1 (Client). Schedule 1 records the project-specific scope, fees, milestones, timing, acceptance criteria and handover requirements.
2. When development starts
Avetco is not required to start development until:
- both parties have agreed to this Agreement and Schedule 1;
- any deposit or first milestone payment stated in Schedule 1 has been received; and
- the Client has supplied any information, access or dependencies identified as prerequisites.
The date those conditions are satisfied is the Development Commencement Date.
3. Services and scope
Avetco will perform the services and deliver the deliverables described in Schedule 1. Work outside that scope is not included unless agreed through the change-control process.
4. Questions, assumptions and discovery
Before the Development Commencement Date, Avetco may ask questions, test assumptions and refine the proposed scope. Any material assumption that affects price, functionality or timing should be recorded in Schedule 1 before the Agreement is finalised.
5. Changes to scope
Either party may propose a change. A material change to features, integrations, deliverables, timing or responsibilities must be documented with any price or schedule impact and agreed in writing before Avetco is required to perform that changed work.
6. Fees and payment
The Client will pay the fees in Schedule 1 in accordance with the agreed milestones and payment dates. Unless Schedule 1 states otherwise, third-party platform, hosting, app-store, domain, API, licensing and similar external charges are separate from Avetco’s development fee.
7. Client responsibilities
The Client will provide timely decisions, content, access, credentials, approvals and other inputs reasonably required for the project. If a Client dependency materially delays the project, the parties will agree a reasonable revised schedule.
8. Review, testing and acceptance
Schedule 1 will identify the applicable acceptance criteria and review period. The Client will review milestone deliverables within the agreed period and either accept them or identify specific material respects in which they do not meet the agreed acceptance criteria. Avetco will correct verified defects that fall within the agreed scope before acceptance.
9. Client background IP
The Client retains ownership of all intellectual property it owned or controlled before the project or supplies to Avetco for the project, including its brand, content, business information and original idea materials (Client Background IP).
10. Avetco background IP
Avetco retains ownership of its pre-existing development methods, know-how, libraries, frameworks, templates, tools, generic components, workflows and other material not created uniquely for the Client (Avetco Background IP).
11. Project IP and handover
Subject to full payment of all amounts due for the project, Avetco assigns to the Client the intellectual property rights Avetco owns in the project-specific deliverables identified for transfer in Schedule 1, such as bespoke source code, interface designs and project documentation. To the extent Avetco Background IP is embedded in a deliverable, Avetco grants the Client a perpetual, worldwide, royalty-free licence to use that embedded material as necessary to use, maintain and operate the delivered product.
12. Third-party and open-source components
Third-party software, services and open-source components remain subject to their own licence terms. Avetco will identify material third-party dependencies that are known and relevant to the delivered product.
13. Confidentiality
Each party must protect the other party’s non-public business, technical and commercial information and use it only for the project. A party may disclose confidential information to personnel and advisers who need it for the project and are bound by confidentiality obligations, or where disclosure is required by law.
14. Security and production data
The parties will agree any project-specific security, production-data, credential or privacy requirements in Schedule 1 where those requirements are relevant. The Client should not provide production personal information, secrets or live credentials unless reasonably required and appropriately protected.
15. Warranty and quality
Avetco will perform the services with reasonable care and skill and will test the deliverables to the extent described in Schedule 1. The Client acknowledges that software may depend on third-party systems and that no software can be guaranteed to be completely error-free or continuously available.
16. Australian Consumer Law
Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy that cannot lawfully be excluded under the Australian Consumer Law or other applicable law.
17. Liability
Any project-specific liability allocation or cap should be stated in Schedule 1 and tailored to the project’s value, risk and intended use. Nothing in this Agreement limits liability to the extent it cannot lawfully be limited.
18. Suspension and termination
Either party may terminate for a material breach that is not remedied within a reasonable written cure period. The Agreement may also specify project-specific cancellation or suspension rights in Schedule 1. On termination, the Client must pay undisputed fees for completed work and authorised work performed up to the termination date, and Avetco will provide any paid-for deliverables required by Schedule 1.
19. Disputes
If a dispute arises, the parties will first attempt to resolve it in good faith through nominated representatives. If it remains unresolved, either party may propose mediation before commencing court proceedings, except where urgent interlocutory relief is reasonably required.
20. General
Variations must be agreed in writing. Neither party may represent that it is the other party’s employee, partner or agent. If there is an inconsistency, the signed project-specific Schedule 1 prevails over the general terms to the extent of the inconsistency. This Agreement is governed by the laws of South Australia, Australia.