IT Operating Systems Upgrade

IT OPERATING SYSTEMS UPGRADE AGREEMENT

This IT Operating Systems Upgrade Agreement (the "Agreement") is entered into as of by and between with a principal place of business at ("Service Provider"), and with a principal place of business at ("Client").

WHEREAS

WHEREAS, Service Provider is engaged in the business of providing information technology services, including the deployment, configuration and migration of operating systems and related software; and

WHEREAS, Client desires to retain Service Provider to perform an upgrade of operating systems on Client systems in accordance with the scope and terms set forth in this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. SCOPE OF WORK

Service Provider shall provide labor, materials, software licensing coordination where applicable, configuration, testing and migration services necessary to upgrade Client's operating systems as described below and in any attachments or approved change orders. The parties acknowledge that deliverables, acceptance criteria and milestones are material to the obligations under this Agreement.

2. PAYMENT TERMS

In consideration for the services and deliverables provided by Service Provider, Client shall pay the fees set forth below in accordance with the schedule. All amounts are payable in U.S. dollars and exclusive of applicable taxes unless otherwise stated.

If any undisputed invoice remains unpaid more than days after the invoice due date, Client shall pay interest at a rate of percent per month (or the maximum lawful rate, if less), calculated daily from the date due until paid.

3. TERM AND TERMINATION

This Agreement commences on the Start Date and continues until the Completion Date unless earlier terminated in accordance with this Section.

Start Date:   Completion Date:

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure the breach within days after receipt of written notice specifying the breach. Either party may terminate for convenience upon providing days' prior written notice to the other party. In the event of termination, Client shall pay Service Provider for all work performed and reasonable demobilization costs incurred up to the effective date of termination.

4. CONFIDENTIALITY

Each party (the "Receiving Party") shall maintain in confidence all non-public, proprietary or business information disclosed by the other party (the "Disclosing Party") that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure ("Confidential Information"). Confidential Information includes system configurations, security credentials, migration plans, and Client data. The Receiving Party shall not use Confidential Information for any purpose other than performing its obligations under this Agreement and shall not disclose Confidential Information to any third party except to employees, contractors or subcontractors who have a need to know and who are bound by obligations of confidentiality at least as protective as those in this Agreement.

The obligations set forth in this Section shall not apply to information that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement; (b) was rightfully known to the Receiving Party prior to disclosure by the Disclosing Party; (c) is received from a third party without breach of an obligation of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information. A Receiving Party may disclose Confidential Information to the extent required by law, provided that it gives the Disclosing Party prompt written notice and cooperates reasonably in any effort to obtain confidential treatment or a protective order.

5. INTELLECTUAL PROPERTY AND LICENSES

Service Provider shall retain all right, title and interest in any pre-existing know-how, tools, processes, methodologies and software used to perform the services ("Provider IP"). Subject to Client's payment of all fees due, Service Provider grants Client a non-exclusive, non-transferable license to use deliverables and any modifications made for Client's internal business operations. Third-party software required for the upgrade shall be identified in writing and Client shall be responsible for procurement and licensing of such third-party software unless otherwise agreed in writing.

Yes — Client to procure licenses
Yes — Service Provider to procure on Client's behalf (costs billed separately)
No third-party software required

6. DATA SECURITY AND PRIVACY

Service Provider shall maintain administrative, physical and technical safeguards consistent with industry standards to protect Client data. Service Provider shall promptly notify Client of any unauthorized access, use or disclosure of Client data and shall cooperate in reasonable remediation efforts. Client acknowledges that backups and migration carry inherent risk and agrees to maintain its own backups prior to commencement of work.

7. CHANGE ORDERS

Any material change to the scope, schedule or fees shall be documented in a written change order signed by authorized representatives of both parties. Service Provider shall provide an estimate for proposed changes within days of Client's request. Work performed pursuant to an executed change order shall be governed by the terms of this Agreement.

8. WARRANTIES; LIMITATION OF LIABILITY

Service Provider warrants that services will be performed in a professional and workmanlike manner consistent with prevailing industry standards for similar services. Service Provider does not warrant that the upgraded operating systems will be uninterrupted or error-free, or that all defects will be corrected. Client's sole and exclusive remedies for breach of the warranty set forth in this Section shall be re-performance of the nonconforming services or, if Service Provider cannot substantially correct the nonconformity within a reasonable period, a refund of fees paid for the nonconforming services.

Except for willful misconduct or breaches of confidentiality, in no event shall either party be liable to the other for incidental, consequential, special or punitive damages arising out of or related to this Agreement. The aggregate liability of either party for any claim arising out of or relating to this Agreement shall not exceed the total fees paid by Client to Service Provider under this Agreement during the twelve (12) months preceding the event giving rise to the claim.

9. INDEMNIFICATION

Each party shall indemnify, defend and hold harmless the other party and its officers, directors and employees from and against any third-party claims arising out of the indemnifying party's gross negligence or willful misconduct in the performance of its obligations under this Agreement, except to the extent such claims arise from the indemnified party's breach or negligence.

10. GOVERNING LAW

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

11. ENTIRE AGREEMENT; AMENDMENT

This Agreement, together with any attachments and executed change orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and representations. No amendment or modification of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.

12. MISCELLANEOUS

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except to a successor in interest in connection with a merger, acquisition or sale of substantially all assets, provided the assignee assumes the assigning party's obligations. Notices under this Agreement shall be in writing and delivered to the addresses provided above unless a party provides written notice of a different address.

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