Migration Services Agreement

Migration Services Agreement

This Migration Services Agreement ("Agreement") is made effective as of by and between Service Provider Name: and Client Name: .

WHEREAS

WHEREAS, Service Provider is engaged in the business of providing data, application, system and infrastructure migration services and possesses the expertise, personnel and resources necessary to perform such services; and

WHEREAS, Client desires to retain Service Provider to perform a migration of Client systems and/or data pursuant to the terms and conditions set forth in this Agreement; and

WHEREAS, the parties desire to set forth their respective rights and obligations with respect to the performance of migration services and related deliverables.

Scope of Work

Service Provider will perform the migration services described below and in any schedules appended to this Agreement. Service Provider will perform the services in a professional and workmanlike manner consistent with industry standards.

Deliverables and Acceptance

Deliverables shall include the migrated data, system configurations, migration scripts, documentation and any transition assistance specified in the Scope of Work. Upon substantial completion of a deliverable, Service Provider will deliver documentation and notice to Client. Client will have days to perform acceptance testing and provide written acceptance or reasonably detailed written rejection specifying deficiencies. Failure to timely reject a deliverable shall constitute acceptance.

Client Responsibilities

Client shall provide timely access to systems, credentials, data, personnel and approvals reasonably required for performance. Client shall be responsible for backup of production data prior to migration unless otherwise set forth in the Scope of Work.

Payment Terms

Client shall pay Service Provider the fees set forth below in consideration for the performance of services and delivery of deliverables. All fees are exclusive of applicable taxes and duties which will be payable by Client.

Invoices shall be submitted by Service Provider and are payable within days of receipt. Overdue amounts shall accrue interest at the rate of % per month (or the maximum legal rate, if lower), calculated daily from the due date until paid.

Term and Termination

The term of this Agreement shall commence on and continue until unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for convenience upon days' prior written notice. Either party may terminate immediately for material breach if the breaching party fails to cure such breach within 30 days after receipt of written notice specifying the breach.

Confidentiality

Each party acknowledges that during performance it may receive or access Confidential Information of the other party. "Confidential Information" means non-public information disclosed in any form that is designated confidential or that a reasonable person would understand to be confidential. Each party agrees to (i) use Confidential Information solely for performance under this Agreement; (ii) restrict disclosure to employees, contractors or agents who have a need to know and are bound by confidentiality obligations no less protective than those herein; and (iii) protect Confidential Information with the same degree of care it uses to protect its own confidential information, but no less than reasonable care.

Confidential Information does not include information that is or becomes publicly available through no fault of the receiving party, was rightfully known by the receiving party prior to disclosure, or is independently developed without use of the disclosing party's Confidential Information, or is required to be disclosed by law (provided the disclosing party is given notice and an opportunity to seek protective measures).

Data Protection and Security

Service Provider shall implement and maintain reasonable administrative, technical and physical safeguards to protect Client data during migration and while in Service Provider's possession. Service Provider shall promptly notify Client of any suspected or confirmed security incident affecting Client data and cooperate with Client in investigating and mitigating such incidents.

Intellectual Property

Unless otherwise agreed in writing, Client retains all right, title and interest in Client data and pre-existing intellectual property. Service Provider grants to Client a perpetual, worldwide, royalty-free license to any Service Provider-owned deliverable materials to the extent necessary for Client's use of the deliverables. Service Provider retains ownership of its proprietary tools, methodologies and software, and any improvements thereto.

Change Orders

Changes to the Scope of Work will be documented in a written change order signed by authorized representatives of both parties. Change orders may adjust fees, schedules and deliverables as appropriate.

Warranties; Limitation of Liability; Indemnification

Service Provider warrants that services will be performed in a professional manner consistent with prevailing industry standards. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

Each party shall indemnify, defend and hold harmless the other party from and against third-party claims arising from the indemnifying party's gross negligence, willful misconduct, or material breach of this Agreement.

Subcontracting and Assignment

Service Provider may engage subcontractors to perform portions of the services provided that Service Provider remains responsible for performance of the services and compliance with this Agreement. Neither party may assign this Agreement without the prior written consent of the other party, except to an affiliate or in connection with a merger or sale of substantially all assets.

Force Majeure

Neither party shall be liable for delays or failures in performance due to causes beyond its reasonable control, including acts of God, strikes, pandemics, government action, network failures and other force majeure events. The affected party shall give prompt written notice and use commercially reasonable efforts to resume performance.

Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of without regard to conflict of laws principles. The parties shall seek to resolve disputes in good faith through negotiation; if unresolved, disputes shall be resolved in the courts located in the jurisdiction specified above.

Entire Agreement

This Agreement, including all exhibits and written change orders signed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral.

No amendment or modification to this Agreement shall be binding unless in writing and signed by authorized representatives of both parties.

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