Business System Upgrade Template

BUSINESS SYSTEM UPGRADE AGREEMENT

This Business System Upgrade Agreement (the Agreement) is made effective as of between Client Name: and Service Provider: .

WHEREAS

WHEREAS, Client operates the business systems identified as and requires upgrades, enhancements and migration services to improve functionality and security; and

WHEREAS, Service Provider represents that it has the technical capability, personnel and experience to perform the upgrade, migration and related services described in this Agreement; and

WHEREAS, the parties desire to set forth the terms under which Service Provider will perform the work and Client will pay for such services.

SCOPE OF WORK

PROJECT TIMELINE

Project Start Date:   Estimated Completion Date:

PAYMENT TERMS

Late Payment Fee: If any undisputed amount is not paid within days after the invoice due date, interest will accrue at per month on the outstanding balance until paid in full.

TERM AND TERMINATION

Initial Term Commences on: and continues until: unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within days after receipt of written notice specifying the breach. Termination for convenience requires days' prior written notice and payment for all services performed and reasonable wind-down costs.

CONFIDENTIALITY

Each party (Receiving Party) shall hold in strict confidence all Confidential Information disclosed by the other party (Disclosing Party). Confidential Information includes technical data, business plans, customer lists, pricing, software code, system architecture and any information marked confidential or that by its nature ought reasonably be considered confidential. The Receiving Party shall not disclose, use, copy or permit access to Confidential Information except to perform its obligations under this Agreement and shall protect such information using the same degree of care it uses to protect its own confidential information, but not less than a reasonable degree of care.

Confidentiality obligations do not apply to information that: (a) is or becomes publicly known through no breach of this Agreement; (b) was rightfully in Receiving Party's possession prior to disclosure; (c) is independently developed without use of the Disclosing Party's Confidential Information; or (d) is required to be disclosed by law, provided prior notice is given to the Disclosing Party where permitted.

CHANGE ORDERS

Changes to the Scope of Work shall be documented in a written Change Order, signed by authorized representatives of both parties, describing any adjustment to the scope, schedule and price. Service Provider is not required to proceed with work outside the original scope without an executed Change Order.

WARRANTIES; LIMITATION OF LIABILITY

Service Provider warrants that services will be performed in a professional and workmanlike manner consistent with industry standards for a period of from acceptance. The express warranty is the sole warranty and is in lieu of all other warranties, express or implied.

Except for willful misconduct or gross negligence, neither party shall be liable for consequential, incidental or punitive damages. Each party's aggregate liability for any claim arising under this Agreement shall not exceed the total amounts paid by Client to Service Provider under this Agreement in the preceding twelve (12) months.

INTELLECTUAL PROPERTY AND DATA

Client retains ownership of Client Data. Service Provider shall have a nonexclusive, nontransferable license to use Client Data solely to perform the services. Except for Client Data and any preexisting Client materials, Service Provider retains ownership of its preexisting tools, software, code and methodologies. To the extent new software or code is developed specifically for Client that is designated as work-for-hire, ownership will be assigned to Client upon full payment; otherwise, Service Provider grants Client a perpetual, worldwide license to use deliverables for Client's internal business purposes.

NOTICES

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of without regard to its conflicts of law principles. Any dispute arising out of or relating to this Agreement shall be resolved in the competent courts of such jurisdiction, unless the parties otherwise agree in writing to arbitration.

ENTIRE AGREEMENT

This Agreement, together with any executed Change Orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and representations, whether written or oral. Any amendment or waiver must be in writing and signed by both parties.

MISCELLANEOUS

Neither party may assign this Agreement without the prior written consent of the other, except that either party may assign to an affiliate or in connection with a merger or sale of substantially all assets. If any provision of this Agreement is held invalid, the remaining provisions shall remain in full force and effect.

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