Software Upgrade License

SOFTWARE UPGRADE LICENSE AGREEMENT

This Software Upgrade License Agreement (the "Agreement") is made effective as of (the "Effective Date") by and between the parties identified below.

Parties

Recitals

WHEREAS, Licensor is the owner or authorized licensor of the software identified as "", currently licensed at version ; and

WHEREAS, Licensee holds a valid license for the software under License Reference and desires to obtain an upgrade to version on the terms set forth herein.

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows.

Scope of Work

Licensee shall be entitled to receive the upgrade deliverables specified above, which may include updated binaries, installation packages, and documentation. Licensor shall provide necessary installation instructions and reasonable support for initial deployment as set out in this Agreement.

License Grant

Subject to Licensee's timely payment of all fees and compliance with the terms of the underlying license(s), Licensor hereby grants to Licensee a non-exclusive, non-transferable license to use the upgraded version of the Software solely for Licensee's internal business purposes, on the number of seats or instances specified as . All rights not expressly granted are reserved by Licensor.

Delivery and Acceptance

Licensor shall deliver the upgrade to Licensee on or before . Licensee shall have days from delivery to test and accept the upgrade. If Licensee provides written notice of material nonconformance within such period, Licensor shall use commercially reasonable efforts to cure the reported defects.

Payment Terms

If any invoiced amount is not paid within days after invoice date, a late fee of of the overdue balance shall accrue each month until paid. Licensee shall also reimburse Licensor for reasonable collection costs and legal fees incurred in enforcing payment.

All fees are exclusive of taxes. Licensee shall be responsible for all taxes imposed on the transaction, other than taxes based on Licensor's net income.

Term and Termination

This Agreement shall commence on the Effective Date and shall continue until unless earlier terminated as provided below.

Either party may terminate this Agreement for convenience upon days' prior written notice to the other party. Either party may terminate for cause if the other party materially breaches any obligation under this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice identifying the breach.

Confidentiality

Each party acknowledges that it will receive Confidential Information of the other party. "Confidential Information" means non-public information disclosed in any form that is designated as confidential or that, under the circumstances, should reasonably be understood to be confidential. The receiving party shall: (a) use Confidential Information solely to exercise its rights and perform its obligations under this Agreement; (b) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information but no less than reasonable care; and (c) not disclose Confidential Information to any third party except to those employees, contractors, or advisors who have a need to know and who are bound by confidentiality obligations at least as protective as those contained herein.

Confidentiality obligations shall continue for years from the date of disclosure, except for trade secrets which shall be protected for so long as they remain trade secrets under applicable law. The obligations in this section shall not apply to information that is: (i) independently developed without use of the other's Confidential Information; (ii) generally known to the public other than through a breach of this Agreement; or (iii) rightfully obtained from a third party without restriction.

Representations, Warranties and Disclaimer

Licensor represents that it has the right to grant the license granted herein. Licensor warrants that, for a period of ninety (90) days following acceptance, the upgraded software will materially conform to the specifications set forth in the Scope of Work. Licensee's sole remedy for breach of this warranty will be repair or replacement of the non-conforming software, at Licensor's option. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE AND ANY UPGRADES ARE PROVIDED "AS IS" AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE TO LICENSOR FOR THE UPGRADE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of , without regard to conflict of law principles. The parties shall attempt in good faith to resolve any dispute arising out of this Agreement through negotiation. If negotiation fails, the exclusive venue for any litigation shall be the state and federal courts located in the chosen jurisdiction.

Entire Agreement and Miscellaneous

This Agreement, including all attachments and any purchase orders referring to this Agreement, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior negotiations, representations and agreements. Any amendment or modification must be in writing and signed by both parties. Neither party may assign its rights or obligations under this Agreement without the other party's prior written consent, except that Licensor may assign to an affiliate or in connection with a merger or sale of substantially all of its assets.

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