Contract Upgrade Agreement

CONTRACT UPGRADE AGREEMENT

This Contract Upgrade Agreement (the Agreement) is entered into as of by and between Client Name: , and Provider Name: . Each of Client and Provider is hereinafter a Party and collectively the Parties.

Recitals

WHEREAS, the Parties entered into a written agreement titled Original Contract (the Original Agreement) dated , which governs the provision of certain services and deliverables; and

WHEREAS, the Parties desire to modify certain terms of the Original Agreement to incorporate upgraded services, deliverables, and payment terms as set forth in this Agreement; and

WHEREAS, the Parties intend for the terms of this Agreement to supplement and, where inconsistent, supersede the Original Agreement as set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the Parties agree as follows:

1. Definitions

In this Agreement capitalized terms shall have the meanings set forth in this Section unless the context otherwise requires. "Original Agreement" means the agreement referenced in the Recitals. "Upgrade Effective Date" means the date specified in Section 3. "Upgraded Deliverables" means the revised services, software, components, documentation, and related materials described in Section 2. "Fees" means the upgrade amounts and other charges set forth in Section 4.

2. Scope of Upgrade

Provider shall perform the upgrade work described below and deliver the Upgraded Deliverables in accordance with the schedule and acceptance criteria set forth herein. Provider's obligations under this Agreement are limited to those expressly described in this Section and in any attachments executed by the Parties.

3. Effective Date

The Upgrade Effective Date shall be , unless another date is agreed in writing and signed by authorized representatives of both Parties.

4. Fees, Invoicing and Payment

Client shall pay Provider the Fees for the Upgraded Deliverables as follows. All amounts are stated in U.S. Dollars unless otherwise indicated.

Unless otherwise specified herein, Provider shall invoice Client in accordance with the schedule set forth above. Client shall pay each undisputed invoice within days of receipt. Late payments shall bear interest at the lesser of 1.5% per month or the maximum rate permitted by law.

5. Term and Termination

Except as expressly modified herein, the term of the Original Agreement shall continue and be amended to include the Upgrade Effective Date and any additional timelines specified in this Agreement. Either Party may terminate this Agreement upon written notice if the other Party materially breaches any provision and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach. Termination shall not relieve either Party of obligations accrued prior to termination, including payment obligations.

6. Changes, Milestones and Acceptance

Changes to the scope of the Upgrade must be documented in a written change order signed by authorized representatives of both Parties. Provider shall perform milestone work and Client shall perform acceptance testing as follows:

7. Representations and Warranties

Each Party represents and warrants that it has full corporate power and authority to enter into and perform this Agreement and that the person signing on its behalf is authorized to do so. Provider warrants that the Upgraded Deliverables will materially conform to the specifications and acceptance criteria described in this Agreement for a period of sixty (60) days following acceptance. Client's sole and exclusive remedy for breach of Provider's warranty shall be, at Provider's election, repair or replacement of nonconforming deliverables or refund of the portion of the Fee attributable to the nonconforming deliverable.

8. Confidentiality

The Parties acknowledge that during performance of this Agreement they may receive Confidential Information of the other Party. Each Party shall (a) maintain such Confidential Information in confidence using at least the same degree of care it uses to protect its own confidential information but no less than reasonable care; (b) not disclose such Confidential Information to any third party except as permitted herein; and (c) use such Confidential Information solely to perform its obligations under this Agreement. Confidential Information does not include information that is or becomes public through no breach of this Agreement or that is independently developed by the receiving Party without use of the disclosing Party's Confidential Information.

9. Intellectual Property

Unless otherwise expressly agreed in writing, all pre-existing intellectual property owned by a Party shall remain the sole property of that Party. Provider hereby grants Client a non-exclusive, non-transferable license to use Provider-owned deliverables solely for Client's internal business purposes as described in the Original Agreement and this Agreement. Any new intellectual property created solely by Provider in the course of performing the Upgrade shall be owned by Provider, subject to a license to Client as necessary to use the Upgraded Deliverables for their intended purpose unless Parties have agreed otherwise in a written assignment.

10. Indemnification

Each Party shall indemnify, defend and hold harmless the other Party and its officers, directors and employees from and against any third-party claim arising out of the indemnifying Party's gross negligence, willful misconduct, or material breach of this Agreement. The indemnified Party shall notify the indemnifying Party promptly of any claim, provide reasonable cooperation in the defense, and permit the indemnifying Party to control the defense and settlement of the claim, provided that no settlement that admits liability or imposes obligations on the indemnified Party shall be entered into without the indemnified Party's prior written consent.

11. Limitation of Liability

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR A BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

12. Notices

All notices required or permitted under this Agreement shall be in writing and shall be delivered by hand, overnight courier, or certified mail (return receipt requested) to the addresses below or to such other address as a Party designates by notice in accordance with this Section. Notices shall be deemed given upon receipt.

13. Amendments; Waiver; Counterparts

This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right shall operate as a waiver of that right. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together constitute one instrument. Signatures transmitted by electronic means shall be effective as originals.

14. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the state specified below without regard to its conflict of law principles.

15. Entire Agreement

This Agreement, together with the Original Agreement and any duly executed change orders or attachments referencing this Agreement, constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written.

16. Severability

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed only to the extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

17. Miscellaneous

The Parties agree to cooperate and execute any further documents reasonably necessary to carry out the purposes and intent of this Agreement. Headings are for convenience only and shall not affect interpretation.

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