Upgrade Program Agreement

UPGRADE PROGRAM AGREEMENT

Agreement Date:

Parties

Provider Name:

Participant Name:

Recitals

WHEREAS, Provider operates a program for software and equipment upgrades, maintenance, and related services as described herein; and

WHEREAS, Participant desires to enroll certain systems and/or products in Provider's Upgrade Program (the Program) and Provider is willing to provide upgrade services under the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend to set forth the scope, compensation, confidentiality obligations, term, and other material provisions governing the Program.

Scope of Work

Provider shall provide upgrade services for the products and systems identified by Participant, including delivery and installation of software updates, firmware upgrades, necessary configuration adjustments, and post-upgrade verification. Specific tasks, deliverables, milestones and exclusions are described below.

Payment Terms

Total Program Fee: $ (US Dollars)

Payments are due within days of invoice unless otherwise specified. Participant shall be responsible for any applicable taxes, duties, and fees.

Late Payment: If any undisputed amount is not paid when due, Provider may assess interest at the lesser of 1.5% per month or the maximum lawful rate and charge a late fee of $ for each missed installment.

Term and Termination

Term Commencement Date: .

Term Expiration Date: , unless earlier terminated as provided herein.

Either party may terminate this Agreement for convenience upon days' prior written notice to the other party. Provider may immediately suspend services if Participant fails to pay undisputed amounts when due and such failure continues for ten (10) days following written notice.

Upon termination, Participant shall pay Provider for all services performed and expenses incurred through the effective date of termination and return or destroy Provider Confidential Information as directed.

Confidentiality

Definition: "Confidential Information" means non-public information disclosed by one party ("Discloser") to the other ("Recipient") in any form that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes technical data, trade secrets, product roadmaps, pricing, and customer information.

Obligations: Recipient shall (i) hold Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information but no less than reasonable care; (ii) use Confidential Information solely to perform its obligations under this Agreement; and (iii) not disclose Confidential Information to any third party except to its employees, agents, or contractors who have a need to know and who are bound by confidentiality obligations at least as restrictive as those herein.

Exclusions: Confidential Information does not include information that: (a) is or becomes publicly available through no breach by Recipient; (b) is rightfully received from a third party without restriction; (c) is independently developed by Recipient without reference to Discloser's Confidential Information; or (d) is disclosed under compulsion of law, provided Recipient gives prompt notice and limits disclosure to the extent required.

Representations; Warranties; Liability

Each party represents that it has the full power and authority to enter into this Agreement. Provider warrants that services will be performed in a professional and workmanlike manner in accordance with industry standards. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED ABOVE, SERVICES ARE PROVIDED "AS IS" AND PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED.

Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. PROVIDER'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY PARTICIPANT TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered by hand, overnight courier, or certified mail to the addresses set forth below or to such other address as a party may designate by written notice.

Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the state of without regard to its conflict of laws principles. The parties shall endeavor to resolve disputes in good faith by negotiation. If unresolved, disputes shall be resolved by binding arbitration in the county of the Provider's principal place of business unless the parties agree otherwise.

Entire Agreement; Miscellaneous

This Agreement, including any schedules or attachments, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior or contemporaneous agreements, proposals, negotiations, and understandings, whether written or oral. No amendment or waiver shall be binding unless in writing and signed by both parties.

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except that Provider may assign to an affiliate or successor in connection with a merger or sale of substantially all its assets.

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