Setting realistic timelines for development and sale is integral to any successful software-related agreement, whether it be a licensing agreement, services agreement, consulting agreement, or otherwise. It is understandable that deadlines will change and costs will increase, particularly in an ever-changing technological environment. For that reason (among others), statements of work and iterative deliverables are often part and parcel of a software development agreement.

However, as a federal court in Texas recently decided, the progress (or lack thereof) concerning a software development agreement cannot be obscured by allegedly fraudulent statements, nor can breach be excused simply because the developer encounters what it claims as unforeseen technological hurdles. See Polar Pro Filters v. Frogslayer, No. 19-1706 (S.D. Tex. Oct. 22, 2019).