EXHIBIT
10.5
Master
Software Development Agreement Software Development Agreement
This
Software Development Agreement is made on March 1oth, 2020 (the “Effective Date”) between Teknowland Inc., a California
corporation with its principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Developer”),
and Creative Learning Corporation, a Delaware corporation with its principal place of business located at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the “Customer”).
WHEREAS,
the Client has conceptualized the development and maintenance of the online Franchise Management Tool, Website/Mini Site and
any new software tool (the “Software System Software, Application Software, Programming Languages”), and the
Developer is a contractor with whom the Client has come to an agreement to enhance, develop and maintain the Software. The Software
will not include any new development and maintenance for an online subscription model portal.
The
parties agree as follows:
| 1. | Definitions.
In addition to the terms defined above, the following definitions apply: |
| 1. | “Confidential
Information” means all non-public and business-related information, written or
oral, that the Customer discloses or makes available to the Developer, directly or indirectly,
through any means of communication or observation. |
| 2. | “Software”
means Customer’s web-based Franchise Management Tool, Website/Min Site and any
new software tools., and all associated documentation and other instructions. |
| 3. | “Specifications”
has the meaning given to it in section 3.1. |
| 2. | Software
Development Services. The Customer engages the Developer, and the Developer agrees, to
perform services for the Customer to develop, modify, improve, deliver and install the
Software in accordance with the terms of this agreement. |
| 3. | Developer’s
Duties and Responsibilities |
| 1. | Specifications.
The Customer shall define the specifications, requirements, and deliverables (the “Specifications”)
with input from the Developer to make sure each specification conforms to the Developer’s
written guidelines. Each specification must be able to be worked Independently.
The goals of all specifications must be Negotiable. Every specification
must be Estimable by the Developer. Scope of specifications should be Small
to Medium for lowering the risk associated with changes to code. Tests
must be defined for every functional requirement. Finally, Example cases
and outcomes must be defined when possible. |
| 2. | Development.
The Developer shall design, develop, modify, improve and install the Software in accordance
with the Specifications. |
| 3. | Delivery.
The Developer shall grant the Customer access to the source code of the Software from
the Effective Date of the agreement or as soon as practicable thereafter. The initial
installation of the Software and any updates shall be installed as soon as is practicable
and according to agreements between the Customer and Developer during periodic project
management meetings. |
| 4. | The
developer acknowledges and agrees that the source code and the software shall, at all
times both during and after the term of this agreement, belong exclusively to the Customer. |
| 5. | Installation.
The Developer will be responsible for conducting at least one installation of the Software
and producing documentation outlining the steps required for the Customer to install
the Software. |
| 1. | Acceptance
Period. The Customer will have 14 days following each date of delivery OR installation
to assess and test the Software. |
| 2. | Completion.
If the Developer delivers the Software in accordance with the Specifications, then the
Developer will be deemed to have completed its delivery obligations. |
| 3. | Rejection.
If the Developer fails to deliver the Software in accordance with the Specifications,
the Customer shall detail in writing its grounds for rejection using the Jira tool. In
that case, the Developer shall use reasonable efforts to correct the Software, in which
case upon delivery of the corrected Software, the process of acceptance testing will
restart. |
| 4. | Continued
Failure. If the Developer’s corrections fail to deliver the Software in accordance
with the Specifications, then the Customer may elect to terminate this agreement or adjust
the Specifications accordingly. |
| 1. | Changes.
The Customer may at any time request changes to the Specifications. Changes must be submitted
in writing into the Developer’s issue tracking system (JIRA), or to the Developer’s
project management contact. |
| 2. | Additional
Time. If the proposed change will, in the Developer’s reasonable opinion, require
a delay in the delivery OR installation of the Software, then the Customer and the Developer
shall confer. The Customer may in that case elect to either: |
| 1. | withdraw
its proposed change, or |
| 2. | require
the Developer to deliver the Software with the proposed change, subject to the delay. |
| 1. | Scope.
The Developer shall provide the Customer with training on how to use the Software during
weekly project management meetings. Additional training can be requested by the Customer. |
| 2. | Dates
and Locations. The Developer shall conduct the training on the dates and at the locations
that the parties agree upon. |
| 7. | Support
and Maintenance |
| 1. | The
Customer may obtain support and maintenance services from the Developer from 6 am to
6 pm Pacific Time. Support will also be available over the weekends for any production
defect that needs to be fixed. |
| 1. | Fees.
The Customer shall pay for four (4) Full time Developers according to a fixed monthly
rate of $12,900 only. |
| 2. | Expenses.
The Customer shall reimburse the Developer for all reasonable travel expenses that are
pre-approved by the Customer in writing. |
| 3. | Payment
Due Date. All fees under this agreement will be due and payable in full to the Developer
no later than Thirty (30) days after the date of the Developer’s invoice. |
| 4. | Late
Payments. Any amount not paid when due will bear interest from the due date until paid
at a rate equal to 5.0% annually. or the maximum allowed by law, whichever is less. |
| 9. | Term.
This agreement shall be for a period of six (6) months and automatically renew until
the Developer has performed all its obligations under this agreement. Regardless, the
Parties retain the right to terminate this agreement at anytime pursuant to Section 18
below. |
| 10. | Representations.
The Developer represents and warrants to the Customer as follows, acknowledging that
the Customer is relying on these representations and warranties: |
| 1. | Right
to Assign. The Developer acknowledges and agrees that the Customer owns all right, title
and interest in and to the software and the source code, including any and all improvements,
modifications, developments, enhancements and other software developed for Customer. |
| 2. | No
Infringement. The Developer’s use of the Software will not infringe upon the intellectual
property, contractual, or other proprietary or personal rights of any person. |
| 1. | Limited
Media Warranty. The Developer warrants that, for a period of 60 days following the termination
of this agreement the Developer will be able to provide the Customer with a copy of the
Software’s source code via Internet file transfer as soon as practicable and when
given written notice. Developer will not retain any copies of the source code or any
confidential information following the expiration or earlier termination of this agreement. |
| 2. | Limited
Support Warranty. For a period of 60 days following the delivery OR installation of the
Software, the Developer shall perform its maintenance and support services consistent
with generally accepted industry standards, but only if the Software is installed and
operated in accordance with the Developer’s documentation and written other instructions. |
| 3. | Limited
Performance Warranty. The Developer warrants that, for a period of 60 days starting on
the date of delivery OR installation of the Software, the Software will perform in accordance
with the functional Specifications set forth in the documentation, but only if the Software
is installed and operated in accordance with the Developer’s documentation and
other written instructions. |
| 4. | Disclaimer.
The Developer does not warrant that the functions contained in the Software will meet
the Licensee’s requirements or operate in the combination desired by the Licensee,
or that the Software’s operation will be uninterrupted or error free. The Developer
does not make and will not be liable for any warranties other than those expressly included
in this agreement. |
| 1. | Independent
Contractor. The Developer is an independent contractor. Nothing contained in this agreement
creates a partnership, joint venture, employer/employee, principal-and-agent, or any
similar relationship between the parties. |
| 2. | Proprietary
Rights. The parties acknowledge that the development of the Software is “work for
hire” within the meaning of the Copyright Act of 1976, as amended on one or more
occasions, and that the Software written under this agreement will be the Customer’s
property. |
| 3. | Consent
to Use of Data. The Developer may collect and use technical information gathered as part
of its support services but may only use this information to improve its products and
services and for no other purpose. The Developer shall not disclose any of this information
in a form that personally identifies the Customer or it clients. |
| 4. | Government
End Users. If the Software and related documentation are supplied to or purchased by
or on behalf of the United States Government, then the Software is deemed to be “commercial
software” as that term is used in the Federal Acquisition Regulation system. The
rights of the United States will not exceed the minimum rights set forth in FAR 52.227-19
for “restricted computer software”. All other terms and conditions of this
agreement otherwise apply. |
| 1. | Confidentiality
Obligations. During the term of this agreement for 25 years afterward, the Developer
shall hold all Confidential Information in confidence in accordance with the terms of
this agreement. |
| 2. | Use
Solely for Purpose. The Developer shall use the Confidential Information in accordance
with, and solely for the purpose of providing its services under, the terms of this agreement. |
| 14. | Source
Code Management. Delivery and Update of Source Code. The Developer shall provide access
to the source code to the Customer during the entire term of the agreement and maintain
backups for a minimum of 90 days after the termination of the agreement. At all times
during and after the term of this agreement, the source code does and will belong to
the Customer. Developer must provide the source code to Customer at all times during
the term of this Agreement, as well as upon termination or expiration of this agreement. |
| 15. | Intellectual
property rights. The Parties acknowledge and agree that the Customer will hold all intellectual
property rights in the Software including, but not limited to, copyright and trade ▇▇▇▇
rights. The Developer agrees not to claim any such ownership in the Software’s
intellectual property at any time prior to or after the completion and delivery of the
Software to the Customer. |
| 1. | Developer’s
Indemnity. The Developer shall indemnify the Customer and its officers, directors, employees,
agents, and affiliates, against all claims, liability, costs, and expenses (including
attorneys’ fees) arising from any third party claim or proceeding against the Customer |
| 1. | based
on any claim that the Software infringes or violates any intellectual or other property
right, or |
| 2. | that
alleges any negligent act or omission or willful conduct of the Developer or its directors,
officers, employees, agents, or affiliates. |
| 3. | Developer’s
breach of its obligation under this Agreement or violation of any application law, rule
or regulation. |
| 2. | Notice
of Claim. The Customer shall give prompt written notice to the Developer of any claim
or potential claim for indemnification under this agreement. |
| 17. | Limitation
of Liability |
| 1. | Neither
party will be liable for breach-of-contract damages that the breaching party could not
reasonably have foreseen upon entering into this agreement. |
| 2. | Neither
party will be liable to the other for any indirect, special, punitive, exemplary or consequential
damages, or incidental losses or damages of any kind, including, but not limited to,
lost profits, lost savings or loss of use of facilities or equipment, regardless of whether
arising from breach of contract, warranty, tort, strict liability or otherwise, even
if advised of the possibility of such loss or damage, or if such loss or damage could
have been reasonably foreseen. |
| 3. | Developer’s
liability for any negligent acts, errors, or omissions is limited to the Developer's
insurance policy agreement. |
| 4. | At
all times during the term of this Agreement, the Developer shall maintain liability insurance
policies in the minimum coverage and limit requirements [ General Liability $ 1,000,000
EACH OCCURRENCE| DAMAGE TO RENTED PREMISES (Ea occurrence) $1,000,000 | General Liability
MED EXP (Any one person) $10,000 |PERSONAL & ADV INJURY $1,000,000 | GEN'L AGGREGATE
LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 | Product and Completed Operations $2,000,000
| Workers Compensation EACH ACCIDENT $1,000,000]. Developer will cause the Customer to
be named as an additional insured under such policies and will provide to Customer on
an annual basis and also upon request from Customer, a copy of Developer Certificate
of Insurance establishing Developer's compliance with its obligations under this Agreement.
Developer’s failure to comply with its obligations under this Section will be deemed
a material default giving Customer the right to terminate this Agreement if not cured
within 5 business days following Developer’s receipt of written notice from Customer. |
| 1. | Termination
upon Notice. Either party may terminate this agreement for any reason upon 30 days’
notice to the other party. |
| 2. | Termination
for Cause. If either party |
| 1. | commits
a material breach or material default in the performance or observance of any of its
obligations under this agreement, and |
| 2. | the
breach or default continues for a period of 30 days after delivery by the other party
of written notice reasonably detailing such breach or default, then the non-breaching
or nondefaulting party may terminate this agreement, with immediate effect, upon written
notice to the breaching or defaulting party. |
| 3. | Termination
upon Insolvency. This agreement will terminate immediately upon the Developer’s
insolvency, bankruptcy, receivership, dissolution, or liquidation. |
| 1. | Termination
for Customer’s Breach. In the event of termination of this agreement due to a material
breach or default committed by the Customer, |
| 2. | the
assignment of rights to the Customer in this agreement will terminate, and |
| 3. | Termination
for any other Reason. In the event of termination of this agreement for any other reason, |
| 4. | the
Customer will continue to exercise all rights to the Software that it has acquired under
this agreement, |
| 5. | the
Developer shall immediately deliver in the format specified by the Customer, to the Customer
all Software, documentation, source code, and other Customer property in its possession
relating to the Software and then destroy all copies in its possession or control. |
| 6. | the
Customer shall pay the Developer for all services rendered and work performed up to the
effective date of termination, unless the Customer has terminated for cause, in which
case it will only be required to pay fair value. The Developer shall provide the Customer
with an invoice for its fees within 30 days of the effective date of the termination,
and the Client shall pay the invoice within 15 days of receipt. |
| 7. | the
Developer will not develop for any client the same functional software system for a period
of 10 years. |
| 1. | Entire
Agreement. This agreement contains all the terms agreed to by the parties relating to
its subject matter. It replaces all previous discussions, understandings, and agreements. |
| 2. | Amendment.
This agreement may only be amended by a written document signed by both parties. |
| 3. | Assignment.
The Developer may not assign this agreement or any of its rights under it. The Customer
may assign this agreement or any of its rights without notice or the need for the Developer’s
consent. |
| 4. | Remedies
Cumulative. The rights and remedies available to a party under this agreement are cumulative
and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise
available to that party. |
| 5. | Survival.
Sections 13 (Confidentiality), 15 (Assignment of Rights), 16 (Indemnification), 17 (Limitation
of Liability), and 18.4 (Effect of Termination), survive the termination or expiration
of this agreement. |
| 6. | Sever-ability.
If any part of this agreement is declared unenforceable or invalid, the remainder will
continue to be valid and enforceable. |
| 7. | Waiver.
A party’s failure or neglect to enforce any of rights under this agreement will
not be deemed to be a waiver of that party’s rights. |
| 8. | Governing
Law. This agreement will be governed by and construed in accordance with the laws of
the State of California, without regard to its conflict of laws rules. |
| 9. | Waiver
of Jury Trial. The parties waive their respective rights to trial by jury in any action
or proceeding involving this agreement or the transactions relating to its subject matter. |
| 10. | Headings.
The headings used in this agreement and its division into articles, sections, schedules,
and other subdivisions do not affect its interpretation. |
This
agreement has been signed by the parties. Teknowland, Inc.
Signed
: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name
: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title
: CEO
Date
:
Creative
Learning Corporation
Signed
: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name
: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title
: CEO
Date:
3/21/2020
