Upgrade Agreement

UPGRADE AGREEMENT

Parties and Recitals

This Upgrade Agreement ("Agreement") is made and entered into as of the Effective Date set forth below between:

Service Provider:

Client:

Effective Date:

WHEREAS

WHEREAS, Service Provider has previously delivered goods and/or services to Client pursuant to an existing agreement and Client seeks to obtain an upgrade, enhancement, or replacement of such goods and/or services under the terms set forth herein;

WHEREAS, Service Provider represents that it has the requisite expertise and resources to perform the upgrade described in this Agreement and will perform in a workmanlike manner consistent with industry standards; and

WHEREAS, the parties desire to set forth the scope, payment terms, confidentiality obligations, and other terms governing the upgrade in a written agreement.

Scope of Work

Deliverables shall be deemed accepted when Client provides written acceptance or fails to provide written objections describing material non-conformance within calendar days after delivery, except where such non-conformance reasonably prevents testing or use.

Payment Terms

Total Upgrade Price: $

Late Payment: Amounts not paid within days of invoice due date shall accrue interest at or the maximum allowed by law, whichever is less. Client shall also be responsible for reasonable collection costs.

Term and Termination

Term: This Agreement shall commence on and shall continue until unless earlier terminated in accordance with this Agreement.

Termination for Convenience: Either party may terminate this Agreement without cause by providing days prior written notice to the other party. Termination shall not relieve Client of its obligation to pay for work already performed and accepted prior to termination.

Termination for Cause: Either party may immediately terminate upon written notice if the other party materially breaches this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

Confidentiality

Definition: For purposes of this Agreement, "Confidential Information" means non-public business, technical, operational, and financial information disclosed by a disclosing party to the receiving party that is marked confidential or would reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.

Obligations: The receiving party shall (a) hold Confidential Information in strict confidence, (b) use Confidential Information solely for the purposes of performing under this Agreement, and (c) restrict disclosure to employees and contractors with a need to know and who are bound by confidentiality obligations no less protective than those herein.

Exclusions: Confidential Information does not include information that (i) is or becomes generally available to the public through no wrongful act of the receiving party; (ii) was in the receiving party's lawful possession prior to receipt; (iii) is rightfully received from a third party without confidentiality obligations; or (iv) is independently developed without use of the other party's Confidential Information.

By checking this box, the party acknowledges receipt of and agreement to the confidentiality obligations set forth in this Agreement.

Warranties and Liability

Service Provider warrants that the upgrade deliverables will materially conform to the specifications set forth in the Scope of Work for a period of days following acceptance. Service Provider's sole obligation for breach of this warranty shall be to, at its option, repair, replace, or refund charges attributable to the nonconforming portion.

Limitation of Liability: Except for liability arising from willful misconduct or gross negligence, each party's aggregate liability for any claim arising out of or relating to this Agreement shall not exceed the total amounts paid by Client to Service Provider under this Agreement.

Governing Law and Dispute Resolution

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.

Dispute Resolution: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation. If the parties cannot resolve the dispute within thirty (30) days, either party may pursue all available remedies in the courts of the chosen governing state.

Entire Agreement

This Agreement, together with any statements of work and attachments expressly incorporated herein, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.

Miscellaneous

Assignment: Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party, except that Service Provider may assign to an affiliate or in connection with a sale of substantially all of its assets.

Notices: All notices required or permitted hereunder shall be in writing and delivered to the billing contact or the address specified in this Agreement. Notices are effective upon receipt.

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