MOBILE APPLICATION DEVELOPMENT AGREEMENT
This Mobile Application Development Agreement (the “Agreement”) is entered into as of June
29, 2019, effective as of July 1, 2019 (the “Effective Date”) by and between Mid West Coast
Media LLC, (the “Developer”), and the Whitestown Parks Department, a municipality in the
state of Indiana (the “Town,” and together with the Developer, the “Parties”).
RECITALS
WHEREAS, the Town offers nature, parks, programs, and recreational activities to the citizens
of Whitestown; and
WHEREAS, the Developer provides customized mobile software programs and hosting services
with integrated backend updating tools to help market, sell, and communicate; and
WHEREAS, the Town wishes to engage the Developer as an independent contractor for the
Town for the purpose of designing and developing the Town’s mobile Parks Department event
system with administrative backend system (the “Application System”) on the terms and
conditions set forth below; and
WHEREAS, the Developer wishes to develop the Application System and agrees to do so under
the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW THEREFORE, in consideration of the above recitals and the mutual promises and
benefits contained herein, the Parties hereby agree as follows:
1. PURPOSE.
The Town hereby appoints and engages the Developer, and the Developer hereby accepts this
appointment, to perform the services described in Whitestown Parks & Recreation website &
mobile app proposal attached hereto and made a part hereof (the “Overview”), in connection
with the design, development, and hosting of the Application System (collectively, the
“Services”).
2. COMPENSATION.
The total compensation for the initial development of the project shall be as set forth in the
Overview hereto. These payments shall be made in installments according to the schedule set
forth in the Overview hereto. Any additional payments shall be due 60 days after invoice.
3. TERM.
This Agreement shall become effective as of the Effective Date and, unless otherwise terminated
in accordance with the provisions of Section 4 of this Agreement, will continue until the Services
have been satisfactorily completed and the Developer has been paid in full for such Services (the
“Term”) [or on the expiration of the Warranty Period as defined in subsection 9(a) of this
Agreement.].
4. TERMINATION.
(a) Types of Termination. This Agreement may be terminated:
A. By either Party on provision of thirty (30) days written notice to the other Party.
B. By either Party for a material breach of any provision of this Agreement by the other
Party, if the other Party’s material breach is not cured within thirty (30) days of
receipt of written notice thereof. This shall include any delays to the timeline
specified in the Overview.
C. By the Town at any time and without prior notice, if the Developer is convicted of
any felony crime or offense, fails or refuses to comply with the written policies or
reasonable directives of the Town, or is guilty of serious misconduct in connection
with performance under this Agreement.
(b) Responsibilities after Termination. Following the termination of this Agreement for
any reason, the Town shall promptly pay the Developer according to the Overview for Services
rendered before the effective date of the termination (the “Termination Date”). The Developer
acknowledges and agrees that no other compensation, of any nature or type, shall be payable
hereunder following the termination of this Agreement. All intellectual property developed
pursuant to this Agreement before the Termination Date shall remain property of the Developer.
5. RESPONSIBILITIES.
(a) Of the Developer. The Developer agrees to do each of the following:
A. Create the Application System as detailed in the Overview to this Agreement, and
extend best efforts to ensure that the design and functionality of the Application
System meets the Town’s specifications.
B. Devote as much productive time, energy, and ability to the performance of its duties
hereunder as may be necessary to provide the required Services in a timely and
productive manner and to the timeframe specified in app project outline.
C. Perform the Services in a workmanlike manner and with professional diligence and
skill, as a fully-trained, skilled, competent, and experienced personnel.
D. On completion of the Application System, assist the Town in installation of the
Application System to its final location, which assistance will include helping the
Town with its upload of the finished files to the Developer’s selected web hosting
company and submitting for approval on the Apple App Store and Google Play
Marketplace.
E. Provide all files and compiled code to the Town.
F. Provide Services and an Application System that are satisfactory and acceptable to
the Town and substantially free of defects.
G. Communicate with the Town regarding progress it has made with respect to the
milestones listed in app project outline in performing the Services upon an agreeable
time on a regular basis.
(b) Of the Town. The Town agrees to do each of the following:
A. Engage the Developer as the creator of its Application System as further detailed in
the Overview to this Agreement.
B. Provide all assistance and cooperation to the Developer in order to complete the
Application System timely and efficiently.
C. Provide any compliance requirements for the Application System.
D. Provide initial information, and supply all content for the Application System.
6. SUPPORT PERIOD.
The Developer agrees to provide continued support for the Application System for 90 days after
the iPhone application is successfully approved on the Apple App Store and the Android
application is successfully approved on the Google Play Marketplace (the “Support Period”).
The Support Period shall refer to any bugs or issues relating to the features specified in app
project outline, and not to create new functionality for the Application System. This support will
be provided to the Town at no additional cost.
7. CONFIDENTIAL INFORMATION.
The Developer agrees, during the Term and thereafter, to hold in strictest confidence, and not to
use, except for the benefit of the Town, or to disclose to any person, firm, or corporation without
the prior written authorization of the Town, any Confidential Information of the Town.
“Confidential Information” means any of the Town’s proprietary information, technical data,
trade secrets, or know-how, including, but not limited to, business plans, research, product plans,
products, services, customer lists, markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration information,
marketing, finances, or other business information disclosed to the Developer by the Town either
directly or indirectly.
8. PARTIES’ REPRESENTATIONS AND WARRANTIES.
(a) The Parties each represent and warrant as follows:
A. Each Party has full power, authority, and right to perform its obligations under the
Agreement.
B. This Agreement is a legal, valid, and binding obligation of each Party, enforceable
against it in accordance with its terms (except as may be limited by bankruptcy,
insolvency, moratorium, or similar laws affecting creditors’ rights generally and
equitable remedies).
C. Entering into this Agreement will not violate the charter or bylaws of either Party or
any material contract to which that Party is also a party.
(b) The Developer hereby represents and warrants as follows:
A. The Developer has the right to control and direct the means, details, manner, and
method by which the Services required by this Agreement will be performed.
B. The Developer has the experience and ability to perform the Services required by this
Agreement.
C. The Developer has the right to perform the Services required by this Agreement at
any place or location, and at such times as the Developer shall determine.
D. The Services required by this Agreement shall be performed by the Developer, and
the Town shall not be required to hire, supervise, or pay any assistants to help the
Developer perform such services.
E. The Developer is responsible for paying all ordinary and necessary expenses of itself
or its staff.
(c) The Town hereby represents and warrants as follows:
A. The Town will make timely payments of amounts earned by the Developer under this
Agreement and as detailed in the Overview hereto.
B. The Town shall notify the Developer of any changes to its procedures affecting the
Developer’s obligations under this Agreement at least thirty (30) days prior to
implementing such changes.
C. The Town shall notify the Developer of any particular laws, rules, or regulations that
must be followed to comply with local accessibility requirements.
D. The Town shall provide such other assistance to the Developer as it deems reasonable
and appropriate.
9. APP REPRESENTATIONS AND WARRANTIES.
(a) Performance. The Developer hereby warrants and represents that for a period of
ninety (90) days following delivery of the Application System to the Town pursuant to the
Overview (the “Support Period”), the frontend and backend systems will be free from
programming errors and defects in workmanship and materials, and will conform to the
specifications of the Overview. If programming errors or other defects are discovered during the
Support Period, the Developer shall promptly remedy those errors or defects at its own expense.
(b) No Disablement. The Developer hereby warrants and represents that the Application
System, when delivered or accessed by the Town, will be free from material defects, and from
viruses, logic locks, and other disabling devices or codes, and in particular will not contain any
virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines
or other hardware component that could permit unauthorized access, disable, erase, or otherwise
harm the Application System or any software, hardware, or data, cause the Application System
or any software or hardware to perform any functions other than those specified in this
Agreement, halt, disrupt, or degrade the operation of the Application System or any software or
hardware, or perform any other such actions.
10. TIMING AND DELAYS.
The Developer recognizes and agrees that failure to deliver the Application System in
accordance with the delivery schedule detailed in the Overview to this Agreement will result in
expense and damage to the Town. The Developer shall inform the Town immediately of any
anticipated delays in the delivery schedule and of any remedial actions being taken to ensure
completion of the Application System according to such schedule. If a delivery date is missed by
more than 30 days, the Town may, in its sole discretion, declare such delay a material breach of
the Agreement under subsection 4(a) and pursue all of its legal and equitable remedies. The
Town may not declare a breach, and the Developer cannot be held in breach of this Agreement,
of this section if such delay is caused by an action or failure of action of the Town. In such case,
the Developer will provide the Town with written notice of the delay and work on the
Application System will work until the reason for the delay has been resolved by the Town and
written notice of that resolution has been provided to the Developer.
11. NATURE OF RELATIONSHIP.
(a) Independent Contractor Status. The Developer agrees to perform the Services
hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement
shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee,
or similar relationship between the Parties, or as authorizing either Party to act as the agent of the
other. The Developer is and will remain an independent contractor in its relationship to the
Town. The Town shall not be responsible for withholding taxes with respect to the Developer’s
compensation hereunder. The Developer shall have no claim against the Town hereunder or
otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s
compensation, health or disability benefits, unemployment insurance benefits, or employee
benefits of any kind. Nothing in this Agreement shall create any obligation between either Party
and a third party.
(b) Indemnification of Town by Developer. The Town has entered into this Agreement
in reliance on information provided by the Developer, including the Developer’s express
representation that it is an independent contractor and in compliance with all applicable laws
related to work as an independent contractor. If any regulatory body or court of competent
jurisdiction finds that the Developer is not an independent contractor and/or is not in compliance
with applicable laws related to work as an independent contractor, based on the Developer’s own
actions, the Developer shall assume full responsibility and liability for all taxes, assessments, and
penalties imposed against the Developer and/or the Town resulting from such contrary
interpretation, including but not limited to taxes, assessments, and penalties that would have been
deducted from the Developer’s earnings had the Developer been on the Town’s payroll and
employed as an employee of the Town.
12. LICENSING.
The Developer agrees to grant a transferable, assignable, non-exclusive license to the Client for
the use of the software framework. The Town and the Developer agree that payments made
under this agreement are for the license and custom consulting services and do not compensate
the Developer for any “work for hire.” The Developer retains the right to distribute, disseminate,
and otherwise license the application in any manner that does not violate any other portion of this
agreement. The Developer shall retain all rights to the source code of the software provided. The
Developer grants the Town a non-exclusive right to source code. Not withstanding any provision
in this section, the Town retains ownership of any data, information, or other property stored,
saved, transmitted or otherwise transformed by the licensed application. The Town retains the
exclusive rights and ownership to the Town of Whitestown name and usage.
13. NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
The Developer hereby warrants to the Town that, to the best of its knowledge, it is not currently
obliged under any existing contract or other duty that conflicts with or is inconsistent with this
Agreement. During the Term, the Developer is free to engage in other development activities;
provided, however, the Developer shall not accept work, enter into contracts, or accept
obligations inconsistent or incompatible with the Developer’s obligations or the scope of
Services to be rendered for the Town pursuant to this Agreement.
14. RETURN OF PROPERTY.
Within seven (7) days of the termination of this Agreement, whether by expiration or otherwise,
the Developer agrees to return to the Town all Town products, samples, models, or other
property and all documents, retaining no copies or notes, relating to the Town’s business
including, but not limited to, reports, abstracts, lists, correspondence, information, computer
files, computer disks, and all other materials and all copies of such material obtained by the
Developer during and in connection with its representation of the Town. All files, records,
documents, blueprints, specifications, information, letters, notes, media lists, original
artwork/creative, notebooks, and similar items relating to the Town’s business, whether prepared
by the Developer or otherwise coming into its possession, shall remain the Town’s exclusive
property.
15. INDEMNIFICATION.
(a) Of Town by Developer. The Developer shall indemnify and hold harmless the
Town and its officers, members, managers, employees, agents, contractors, sublicensees,
affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities,
costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’
fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur
and that arise or result primarily from (i) any gross negligence or willful misconduct of the
Developer arising from or connected with the Developer’s carrying out of its duties under this
Agreement, or (ii) the Developer’s breach of any of its obligations, agreements, or duties under
this Agreement.
(b) Of Developer by Town. The Town shall indemnify and hold harmless the Developer
from and against all Claims that it may suffer from or incur and that arise or result primarily
from (i) the Town’s operation of its business, (ii) the Town’s breach or alleged breach of, or its
failure or alleged failure to perform under, any agreement to which it is a party, or (iii) the
Town’s breach of any of its obligations, agreements, or duties under this Agreement; provided,
however, none of the foregoing result from or arise out of the actions or inactions of the
Developer.
16. INTELLECTUAL PROPERTY.
(a) No Intellectual Property Infringement by Developer. The Developer hereby
represents and warrants that the use and proposed use of the app by the Town or any third party
does not and shall not infringe, and the Developer has not received any notice, complaint, threat,
or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial
design, or other rights of any third party in the app, and the use of the app will not include any
activity that may constitute “passing off.” To the extent the app infringes on the rights of any
such third party, the Town shall obtain a license or consent from such third party permitting the
use of the app.
(b) No Intellectual Property Infringement by Town. The Town represents to the
Developer and unconditionally guarantees that any elements of text, graphics, photos, designs,
trademarks, or other artwork furnished to the Developer for inclusion in the app are owned by
the Town, or that the Town has permission from the rightful owner to use each of these elements,
and will hold harmless, protect, indemnify, and defend the Developer and its subcontractors from
any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or
actual, arising from the use of such elements furnished by the Town.
(c) Continuing Ownership of Existing Trademarks. The Developer recognizes the
Town’s right, title, and interest in and to all service marks, trademarks, and trade names used by
the Town and agrees not to engage in any activities or commit any acts, directly or indirectly,
that may contest, dispute, or otherwise impair the Town’s right, title, and interest therein, nor
shall the Developer cause diminishment of value of said trademarks or trade names through any
act or representation. The Developer shall not apply for, acquire, or claim any right, title, or
interest in or to any such service marks, trademarks, or trade names, or others that may be
confusingly similar to any of them, through advertising or otherwise. Effective as of the
termination of this Agreement, the Developer shall cease to use all of the Town’s trademarks,
marks, and trade names.
17. AUTHORSHIP CREDIT.
The Developer may include a byline and link in the Application System establishing authorship
credit. This byline is upon agreement by both the Town and the Developer and may be removed
at any time upon written request by the Town and payment to the Developer of an authorship fee
equal to 10% of total project cost.
18. LAWS AFFECTING ELECTRONIC COMMERCE.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic
commerce. The Town agrees that it is solely responsible for complying with such laws, taxes,
and tariffs, and will hold harmless, protect, and defend the Developer and its subcontractors from
any claim, suit, penalty, tax, or tariff arising from the Town’s exercise of Internet electronic
commerce.
19. AMENDMENTS.
No amendment, change, or modification of this Agreement shall be valid unless in writing and
signed by both Parties.
20. ASSIGNMENT.
The Town may assign this Agreement freely, in whole or in part. The Developer may not,
without the written consent of the Town, assign, or delegate its obligations under this
Agreement, except that the Developer may transfer the right to receive any amounts that may be
payable to it for its Services under this Agreement, which transfer will be effective only after
receipt by the Town of written notice of such assignment or transfer.
21. SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a
reference to their respective successors and assigns. The provisions of this Agreement shall be
binding on and shall inure to the benefit of the successors and assigns of the Parties.
22. FORCE MAJEURE.
A Party shall be not be considered in breach of or in default under this Agreement on account of,
and shall not be liable to the other Party for, any delay or failure to perform its obligations
hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar
event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided,
however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) notify the other Party of the Force Majeure Event and its impact on performance
under this Agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event
and perform its obligations hereunder.
23. NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this
Agreement, regardless of the length of time for which such failure continues, shall not be
deemed a waiver of such Party's right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of any obligation
under this Agreement shall constitute a consent or waiver to or of any other breach or default in
the performance of any other obligation.
24. NOTICE.
Any notice or other communication provided for herein or given hereunder to a Party hereto
shall be in writing and shall be given in person, by overnight courier, or by mail (registered or
certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows:
If to the Town:
Whitestown Parks Department
6210 Veterans Drive
Whitestown, IN 46075
If to the Developer:
MidWest Coast Media
309 W. Marion Street
South Bend, IN 46601
25. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of Indiana. In the event that litigation
results from or arises out of this Agreement or the performance thereof, the Parties agree to
reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses,
whether or not taxable by the court as costs, in addition to any other relief to which the
prevailing Party may be entitled.
26. COUNTERPARTS/ELECTRONIC SIGNATURES.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument. For purposes of this
Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and
effect as an original signature.
27. SEVERABILITY.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement is held to be
invalid, illegal, or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or
any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such
jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained
herein.
28. ENTIRE AGREEMENT.
This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the
Parties with respect to the subject matter hereof, and supersedes any and all other prior and
contemporaneous agreements and understandings, both written and oral, between the Parties.
29. HEADINGS.
Headings used in this Agreement are provided for convenience only and shall not be used to
construe meaning or intent.
By signing below, the Parties agree to comply with all of the requirements contained in the
Overview.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above
written.
TOWN
DEVELOPER