HomeMy WebLinkAboutCAG2023-326 - Original - Syntax Systems USA, LP - JDE Security Options Analysis Statement of Work (SOW) #01628 - 04/24/2023 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr: ILS/TD
Agreement Routing Form DirAsst:
• For Approvals,Signatures and Records Management Dir/Dep: MC
KEN T This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
W A S H I N G T O N Sheet forms.
Originator: Department:
Lynnette Smith IT
Date Sent: Date Required:
> 05/27/2023
0
Q Director or Designee to Sign. Date of Council Approval:
Q Interlocal Agreement Uploaded to Website ❑✓ N/A
Budqet Account Number: Grant? Yes ZNo
T20235.64160.1800
Budget?W]YesD No Type: N/A
Vendor Name: Category:
Syntax Contract
Vendor Number: Sub-Category:
c 2510835 Original
0
Project Name: .IDE Security Options Analysis SOW
E
`o Project Details: Statement of Work (6 weeks) for JDE Security Options under
Vendor's Terms and Conditions and IT Director signing authority.
4) Agreement Amount: $5,000 Basis for Selection of Contractor: Direct Negotiation
*Memo to Mayor must be attached
i Start Date: 04/24/2023 Termination Date: 06/02/2023
Q Local Business 10YesFv-]No* If meets requirements per KCC3.70.100,pleosecomplete"VendorPurchose-Local Exceptions"form onCityspace.
Business License Verification:Yes El In-Process El Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
ElYesF7No CAG2023-326
Comments:
_ <<signature on attached SOW p. 5/10>>
0
3 Mike Carrington, IT Director
GJ y
Date: <<date on attached SOW p. 5/10>>
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Date Routed to the City Clerk's Office: 6/5/23
ad,V�7i__C Visit Documents.KentWA.govto obtain copies of all agreements
rev.20210513
Docu S ig n Envelope ID:5F214044-7065-445E-B981-651 C 1 D47914A
L SYNTAX
Statement of Work # 01628 —JD Edwards EnterpriseOne Technology Assessment
Date Services Performed By Services Performed For
April 11, 2023 Syntax Systems USA, LP City of Kent
629 Davis Drive,Suite 600 220 Fourth Avenue South
Morrisville, NC 27560 Kent,WA 98032
This Statement of Work # 01628 ("SOW") is between City of Kent ("Client" or "City of Kent") and Syntax Systems USA, LP
("Syntax") effective April 11,2023 ("SOW Effective Date") and is subject to the terms and conditions contained in Schedule 1
(collectively the"Agreement").This Statement of Work must be signed by both parties to be enforceable.
Overview
Syntax will provide Consulting Services to Client as outlined in this SOW(the "Services").Activities not detailed in the Scope
of Services section of this SOW are considered out of scope and will require the execution of a new SOW or a Change Order.
Purpose / Objectives
Oracle JD Edwards EnterpriseOne at the City of Kent is on unsupported software versions. This includes the operating
system,database server,application server,Java and JDE Tools Release. These unsupported software versions may cause
security vulnerabilities as patches are no longer available from the vendors. In addition,the City of Kent is no longer on paid
maintenance or support from Oracle. Support and maintenance are provided by a third-party vendor. The objectives of this
assessment are to document the existing system and provide four options to upgrade&enhance JDE E1 and supporting
software to minimize security vulnerability threats.
Scope of Services
Syntax shall provide the Services as follows:
1. Inventory software versions of JDE E1
2. Inventory software versions of supporting software
3. Document existing JDE architecture
4. Bottomline Transform AP
5. Provide scope for four project estimates
6. Present&deliver project estimates
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Deliverables
The following Deliverables will be generated during the project:
1. JDE E1 architecture documentation
2. JDE E1 and supporting software release levels
3. Four solutions will be provided that include scope,schedule, and budget.
o Partial Technology Refresh
■ Weblogic
• Syntax will explore the option of using a mainstream version of Weblogic with City of
Kent's existing JDE E1 tools release.
• This may include installation of Weblogic in lab environment or newly provisions server at
City of Kent.
• Weblogic is a licensed product and requires an active Oracle Tech Foundation License for
use in a Production environment.
o Full Technology Refresh
o Lift&Shift to Private or Public Cloud
o Move&Improve to Private or Public Cloud
Assumptions
1. This SOW is based on a project duration of 6 weeks.
2. Rates are based on normal business hours(9:00 am—5:00 pm Pacific time, Monday—Friday)excluding public
holidays and/or go-live activities.
3. Client will provide remote connectivity and credentials for Syntax consultants to provide the Services.
4. Client is responsible for all change management and communication activities to internal employees,suppliers,
vendors,and third parties affected or involved in the project.
5. Client will provide appropriate resources and personnel to assist Syntax consultants during the project.
6. Client is responsible for all third-party products and interfaces.
7. Client shall perform a full backup of servers,VMs, databases, and Client Data prior to the Services commencement.
8. All services will be performed remotely unless the parties agree otherwise.
Scope Exclusions
The following components and items are excluded from the scope of this SOW ("Out of Scope Services"):
1. Except where specifically included,third-party products and interfaces.
Services Period / Timeline
The Services outlined in this SOW shall commence on or after April 17,2023 and are expected to be completed 6 weeks from
the commencement date.
Major Milestones
1. Project Kick-Off
2. Remote access&credentials provided
3. Discovery Phase
4. Prepare Estimates
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5. Work with Oracle Sales for licensing
6. Prepare deliverables
7. Present to City of Kent
Fee Schedule
The Services are provided on a flat fee basis.Syntax will provide the Services included in this SOW for$5,000.00 to be invoiced
on the milestones as follows:
• Milestone 1: Kickoff and discovery. Client will be invoiced$2,500 on completion of Milestone 1.
• Milestone 2: estimate preparation, prepare deliverables, presentation to COK. Client will be invoiced $2,500 on
completion of Milestone 2.
Payment Terms & Invoice Procedures
Client will be invoiced monthly for the Services provided in the previous month. Payment is due from Customer thirty(30)days
from the date of each invoice. Past due unpaid balances will be subject to a finance charge of one percent(1.0%) per month.
The above rates are based on Syntax's normal business hours (9:00 am —5:00 pm Pacific time, from Monday to Friday). If
required,travel time incurred by Syntax employees in support of the above-mentioned work will be billed at current rates,plus
expenses. Per diem for meal expenses shall be billed per the U.S. General Services Administration (GSA) rates for Client
location. Client will be invoiced all reasonable out-of-pocket expenses (including, without limitation, costs and expenses
associated with meals, lodging, local transportation and any other applicable business expenses) listed on the invoice as a
separate line item in connection with performance of this SOW in accordance with Syntax's policies governing travel and
associated business expenses. Client's project manager and Syntax project manager will plan travel together, in advance, in
order to manage that cost as effectively as possible.
Completion Criteria
Syntax shall have fulfilled its obligations when the Services described within this SOW, including delivery to Client of the
Deliverables listed herein are completed and Client accepts such Services and Deliverables without unreasonable objections.
No response from Client within ten(10)business days of the Deliverables being distributed by Syntax shall be deemed accepted.
Project Change Control Procedure
The following process will be followed if a change to this SOW is required:
1. A Change Order will be the vehicle for communicating change.The Change Order must describe the change,the
rationale for the change,and the effect the change will have on the project.
2. The Project Manager of the requesting party(Syntax or Client)will review the proposed change and determine
whether to submit the request to the other party.
3. Upon evaluation of the request,both parties will review the impact of the proposed change and, if mutually agreed,
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a Change Order will be executed.
4. A written Change Order be signed by both parties to authorize implementation of the investigated changes.
The contact for inquiries regarding this SOW is: Terri Jackson email:tiackson@svntax.com
The sales executive/manager for this SOW is: Mike Adams email: madams@syntax.com
This SOW will expire if not executed within 60 days of April 11,2023.
IN WITNESS,WHEREOF,the parties hereto have caused this SOW to be effective as of the SOW Effective Date.
City of Kent Syntax Systems USA, LP
DocuSig(n'ed,by:
DocuSigned by:
Signature: t�f✓ U '` b�' Signature: aS �j0ACL
84F01373763349E... E66EC38E9CF914B6...
Name: Mike Carrington Name: Thomas Baertschi
Title: IT Director Title: VP Professional services
Date: April 24, 2023 1 15:13 CDT Date: April 24, 2023 1 13:15 PDT
Invoice
Contact Email apinvoices@kentwa.gov
Syntax Confidential-City of Kent -April 11,2023 4
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Schedule 1
1. Definitions. In addition to those terms otherwise defined herein,for purposes of this Agreement,
the following terms will have the following meanings:
"Affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity
referred to, but only for so long as such control exists. As used in this definition, "Control" means the right to control more
than fifty percent(50%) of the voting interests of the entity.
"Agreement"means this Statement of Work and Schedule 1 and it associated exhibits,schedules,and appendices.
"Change Order" means a written agreement,signed by both Parties, codifying an agreed upon change to the scope,timeline,
Deliverables or cost of the Services as set forth in this Agreement, which may be titled "Supplemental Word Order, Service
Order,Change Request Form", provided that the document meets this definition of a Change Order.
"Company"shall mean the Syntax entity signing the Agreement.
"Confidential Information"means non-public information disclosed by one Party to the other in any form that:(i)is designated
as "Confidential"; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either
Party's products, clients, marketing and promotions, know-how, financial data, accounting and system data, technical
processes, tools, formulae, methodologies, business policies and practices, or the negotiated terms of the Agreement.
Confidential Information does not include information that (i) is or becomes publicly available without breach of this
Agreement; (ii) can be shown by documentation to have been known at the time of receipt from the disclosing party; (iii) is
received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by
documentation to have been independently developed without reference to the Confidential Information.
"Developed Intellectual Property"means any Intellectual Property developed by Company pursuant to the Agreement that is
(i) a modification or enhancement of Client IP, as defined herein, or (ii) an original non-derivative work developed for and
provided to Client under this Agreement.
"Intellectual Property"or"IP"means patents,copyrights,trademarks,trade secrets,trade names,service marks and any other
proprietary intellectual property rights.
"Pre-Existing Intellectual Property" means a Party's Intellectual Property that it licensed, owned, or developed prior to or
independently of this Agreement.
"Representatives" means a Party's respective Affiliates, officers, directors, employees, contractors, attorneys, service
providers,suppliers, and agents.
"Services" means the provision of technical, application, functional or other support services as may be described in in this
Agreement.
"Software" means the Company, created software, or third-party software and applications provided by Company as part of
the Services and specified in this Agreement.
2. Scope of Services
a) General. Company will perform the Services expressly set forth or described in this Agreement.
b) Limitations. Unless expressly included in this Agreement, the Services expressly exclude, and Client is responsible for, the
cost of all Client hardware and software acquisition and implementation. In the event Client requests that hardware or
software be acquired on its behalf by Company, the same, including additional fees, will be itemized in an agreement or a
Change Order.
c) Change Order. In the event that a Party believes that a change in the scope of the Services, timeline(s), schedule(s),
Deliverables, and/or other matters set forth in this Agreement is necessary or desirable, such Party will notify the other Party
and the Parties will negotiate a Change Order,including the related fees for such Change Order,in good faith. In the event that
the Parties agree to such change(s) to the affected Services, the Parties will sign a Change Order. In the event that no such
Change Order is executed by both Parties, Company will not be responsible to perform any out-of-scope Services. Any
additional services authorized by Client pursuant to and described in an executed Change Order will be deemed to be Services
hereunder and will be subject to this Agreement.
3. Term;Termination
a) Term.This Agreement will commence on the Effective Date and will continue in full force and effect until the Services have
been completed.
b)Termination for Material Breach. In the event of any material breach of the Agreement by either Party,the non-breaching
Party may terminate this Agreement in its entirety, by giving the other Party thirty (30) days prior written notice thereof,
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provided, however,termination will not be effective at the end of the thirty(30) day notice period if the Party in breach has
cured the breach of which it has been notified prior to the expiration of the cure period.
c) Termination in Bankruptcy. Either Party may terminate this Agreement on written notice if the other Party enters into
compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which
the other party reasonably believes means that it may be unable to pay its debts. To the extent permitted by law, Company
may request prepayment of Services fees or other security to ensure Client's payment obligations.
d)Termination for Convenience. Notwithstanding anything herein to the contrary,either Party will have the right to terminate
this Agreement, at its discretion with at least thirty (30) days written notice to the other Party. In the event of termination
under this section, Client shall be responsible for fees for Services performed up to and through the date of termination.
4. Fees
a)The fees for Company's Services are set forth in the Fee Schedule. Unless as otherwise expressly specified herein,all invoices
will be sent to Client via email.
b) Disputed Fees. Payment of any fees disputed in good faith may be withheld pending resolution of any such dispute using
the procedure in Section 10, Dispute Resolution. If Client does not participate in good faith to resolve a payment dispute using
the procedure in Section 10,then Company may terminate in accordance with Section 3(b).
c)Taxes.Client is solely responsible for payment of any sales and use taxes,excluding those based on the income of Company,
arising out of and imposed because of the Services provided under this Agreement. All fees and expenses are quoted exclusive
of sales and use taxes. In addition, Client agrees to hold Company harmless from all claims and liability arising from Client's
failure to report or pay such taxes.
d) Expenses. In addition to the fees for Services provided, Client is responsible for reimbursing Company for various actual,
reasonable,out-of-pocket expenses, including those for on-site visits by Company's representatives in the course of providing
contracted Services or incurred by Company in performing or supporting the provision of Services pursuant to this Agreement.
5. Confidentiality and Non-Use
Each Party agrees not to use the other's Confidential Information except in connection with the performance or use of the
Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect
Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other's Confidential Information
to any third party except: (i)to its Representatives, provided that such Representatives agree to confidentiality measures that
are at least as stringent as those stated in this Agreement; (ii) as required by law; or(iii) in response to a subpoena or court
order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of
at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
With respect to the confidentiality and non-use obligations set forth in this Section 5, Confidentiality and Non-Use, and
notwithstanding Section 11,Arbitration, each of the Parties hereto agrees that a violation of such covenants and agreements
may cause irreparable injury to the non-breaching Party for which the non-breaching Party may not have an adequate remedy
at law,and that the non-breaching Party will be entitled, in addition to any other rights and remedies it may have, at law or in
equity,to seek an injunction or other equitable relief,without the posting of a bond therefore,to restrain the breaching Party
from violating,or continuing to violate,such confidentiality obligations.
The confidentiality and non-use obligations and other provisions of this Section 5,Confidentiality and Non-Use,will survive for
three(3)years after termination or expiration of the Agreement.
Upon expiration or termination of this Agreement,or at such earlier time as either Party may request,receiving party promptly
must, at disclosing party's option, either return or destroy all or, if so requested, any part, of the Confidential Information in
receiving party's possession or control,in any form,and all written copies thereof,and the receiving party must certify in writing
as to its compliance with the foregoing. Notwithstanding the foregoing,the receiving party(i)will not be required to return or
destroy electronic versions of the Confidential Information that are backed up on its information management and
communications systems or servers and are not available to an end user to the extent such return or destruction is not
reasonably practical and(ii)may retain a copy of the Confidential Information (including the Confidential Information stored in
electronic form) in accordance with its bona fide policies and procedures of general application (such as internal record
retention policies). Any Confidential Information that cannot be or is not returned or destroyed shall remain confidential and
subject to the restrictions of use in accordance with the terms hereof also after termination of this Agreement.
6. Intellectual Property
a) Pre-existing Intellectual Property. In no event will either Party obtain a proprietary interest in any of the other Party's Pre-
Existing Intellectual Property,which they may use in connection with the Services hereunder. If Client provides Company with
its Pre-Existing Intellectual Property("Client IP"),then Client hereby grants to Company,during the term of this Agreement, a
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limited,worldwide, nonexclusive, non-transferable, royalty-free, right and license(with right of sub-license where required to
perform the Services)to use the Client IP solely for the purpose of providing the Services. Client represents and warrants that
it has all rights in the Client IP necessary to grant this license,and that Company's use of such Client IP shall not infringe on the
Intellectual Property rights of any third party.
b) Client shall have ownership rights in any Deliverables developed by the Company specifically for the Client as a result of or
in connection with the Services in this Agreement, subject to the rights of any third-party licensors and subject to terms and
conditions stated in this Section. To the extent that material which is used in, enhanced, or developed over the course of
providing Services hereunder and which may form or be part of a Deliverable is of a general abstract character, or may be
generically re-used, the Company will own such material, including, without limitation, methodologies, delivery strategies,
approaches and practices, generic software tools, routines, frameworks and components, general content, research and
background materials,training materials,application building blocks,templates,analytical models, project tools,development
tools, inventions, solutions and descriptions thereof, ideas, know-how or any other materials ("Company Materials") is and
shall remain the sole and exclusive property of the Company. Nothing in this Agreement shall prohibit the Company from
copying, reorganizing, adapting, modifying or using in any way it may deem appropriate, Company Materials, or any other
Deliverables specifically prepared for Client pursuant to this Agreement. Subject to the foregoing and subject to the rights of
any third-party licensor and on payment in full for the applicable Services, Client is hereby granted a fully paid, irrevocable,
non-exclusive,royalty-free,sublicensable,and assignable right throughout the world,to the Company Materials as is necessary
for Client to use the Deliverables incorporating the Company Materials.
7. Warranties.
Company warrants to Client that it will perform the Services using reasonable care and skill and in a professional and
workmanlike manner, using generally recognized industry standards in accordance with this Agreement. Company will re-
perform any Services not performed correctly in accordance with these warranties, provided that Company receives written
notice from Client within thirty (30) calendar days after such Services were performed. Company further warrants that the
Services performed will comply with all applicable laws, rules, orders, statutes, and regulations. If Company is unable to
reasonably re-perform Services, or reasonably resolve a warranty issue, Client may terminate this Agreement and Company
will refund amounts paid for the Services being terminated which were not delivered. This limited warranty does not cover
problems caused by accident,abuse,system misuse,or resulting from events beyond Company's reasonable control.These are
Client's only remedies for breach of the limited warranties other than remedies required to be provided under applicable law.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY,
WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE,AND NONINFRINGEMENT.Any warranties,
guarantees,or conditions that cannot be disclaimed as a matter of law last for one year from the start of the limited warranty.
8. Indemnity
a)Company Indemnity. Company will indemnify and defend Client and its Representatives from and against any and all third-
party claims, demands, actions, causes of actions, lawsuits, administrative proceedings or similar actions, and all losses,
damages,costs,expenses and other liabilities related thereto to the extent resulting from or arising out of Company's violation,
infringement, misappropriation or wrongful use of any Intellectual Property or other proprietary rights by any Services and/or
Deliverables, as defined, excluding any third-party hardware, software or services included in the Services provided by
Company to Client hereunder(each an "Infringement Claim").The preceding sentence notwithstanding, Company shall have
no obligation to defend and indemnify Client against any Infringement Claim caused by: (i) Client's use of the Services or
Deliverables in any manner that does not comply in all material respects with the Agreement or applicable laws or regulations,
(ii) an unauthorized modification to the Services or Deliverables by anyone other than Company or its Representatives, (iii)
Client's use of the Services or Deliverables in combination with systems,software(including open source software or hardware),
or other items not supplied by Company,provided that the infringement would not have occurred but for the combination,(iv)
Client's use of the Services or Deliverables after Company notifies Client to discontinue use because of actual or possible
infringement,(v)Client's use of a superseded release of any Software that is included as part of the Services,if the infringement
would have been avoided by a current release of such Software made available to Client by Company,or(vi)Client Data,Client
IP, or material provided by Client (Section 8(a)(i) through 8(a)(vi), collectively, "Client Acts"). For any claim covered by this
Section 8(a),Company will,at its election,either:(i)procure the rights to use that portion of the Services or Deliverables alleged
to be infringing; (ii) replace the alleged infringing portion of the Services or Deliverables with a non-infringing alternative; or
(iii) modify the alleged infringing portion of the Services or Deliverables to make it non-infringing.
b)Client Indemnity.Client will indemnify and defend Company and its Representative from and against any and all third-party
claims, demands, actions, causes of actions, lawsuits, administrative proceedings or similar actions, and all losses, damages,
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costs,expenses and other liabilities related thereto to the extent resulting from or arising out of Client Acts.Client's obligations
under this Section include claims arising out of the acts or omissions of Client's employees or agents,any other person to whom
Client has given access to the Services.
c) Process.The obligation to indemnify,defend,and hold harmless described in this Section 8, Indemnity,or any other section
in this Agreement shall not apply unless the indemnifying party is given prompt notice of the need to do so, in no event more
than twenty (20) business days after the indemnified party has received written notice of the applicable claim, and the
opportunity to control the response to the situation giving rise to such need. The foregoing notwithstanding, in no event may
the indemnifying party admit liability on behalf of the indemnified party, compel the indemnified party to admit liability, or
agree to the payment of any unindemnified amounts without the written consent of the indemnified party.
9. Limitation of Liability
a) NEITHER PARTY NOR ITS REPRESENTATIVES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT,
EXEMPLARY,SPECIAL,CONSEQUENTIAL,RELIANCE OR PUNITIVE DAMAGES(IN TORT,CONTRACT OR OTHERWISE), INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR LOST REVENUES, REPLACEMENT GOODS, LOSS OF TECHNOLOGY,
RIGHTS OR SERVICES, LOSS OF DATA, LOSS RELATED TO OR ARISING FROM ANY THIRD PARTY HARDWARE OR SOFTWARE,
WHICH MAY BE INCLUDED IN THE SERVICES,OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, REGARDLESS OF
WHETHER SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
b)IN ANY CASE,EXCEPT FOR(A)PAYMENT OBLIGATIONS UNDER SECTION 8,(B)DAMAGESARISING FROM DEATH OR PERSONAL
INJURY CAUSED BY NEGLIGENCE, OR (C) LIABILITY FOR WHICH SUCH LIMITATION IS EXPRESSLY PROHIBITED BY APPLICABLE
LAW,COMPANY AND ITS REPRESENTATIVES'AGGREGATE LIABILITY UNDER THIS AGREEMENT,WILL NOT EXCEED THE AMOUNT
CLIENT ACTUALLY PAID COMPANY UNDER THIS AGREEMENT FOR THE SERVICES.
10. Dispute Resolution
Prior to bringing a claim in a court of law,the Parties shall for a period of at least thirty days attempt in good faith to resolve
any dispute arising out of or relating to the Agreement.Such resolution efforts shall be conducted by executives of each Party
who have authority to settle the dispute.All communications pursuant to this Section are confidential and shall be treated as
compromise and settlement negotiations for purposes of applicable rules of evidence. Notwithstanding anything to the
contrary in this Agreement, neither Party shall be required to pursue the procedures described in this Section prior to filing a
request for injunctive or other equitable relief.
11. Insurance.
Company will maintain,throughout the performance of its obligations under the Agreement,the following types of insurance
coverage with coverage amounts of:General Liability-US$1,000,000 per occurrence/US$2,000,000 in the aggregate;Workers'
Compensation Insurance with coverage limits as may be required by the law of the states in which Services are to be performed;
and Errors&Omissions insurance US$1,000,000 per claim/US$2,000,000 in the aggregate. Upon request,Company will provide
certificate(s)from its insurer(s) indicating the amount of insurance coverage,the nature of such coverage, and expiration date
of the policy.Any coverage mentioned in this Section 11, Insurance, is subject to the Limitations of Liabilities set forth herein
and shall, in no way, enlarge, abridge, or otherwise modify any liability of Company. In no event, shall the Company be liable
to pay to Client any more than its proportionate share of insurance proceeds received by Company for any claim contemplated
herein.
12. Miscellaneous
a)No Waiver. No waiver of any breach or default of the Agreement will constitute a waiver of any prior, concurrent, or
subsequent breach of the same or any other provision hereof,and no waiver will be effective unless made in writing and signed
by an authorized representative of the Party waiving the breach or default.
b)Force Majeure. Neither Party will be liable, nor deemed in breach, in the event that it is unable to perform any of its
obligations due to any cause beyond its reasonable control, including acts of God, pandemics, actions or decrees of
governmental bodies, labor disputes, strikes, war, acts of terrorism, embargoes, loss or interruption of electrical power,
network, internet, or other utility, failure in hardware, software, databases, or telecommunications, or disruption caused by
product or service anomalies (a "Force Majeure Event"). A Party will be excused from performance during the period of the
Force Majeure Event, and for reasonable recovery period thereafter,except that the foregoing shall not apply to Client's
payment obligations. Each Party agrees to give the other Party prompt notice of any Force Majeure Event, and the extent to
which the affected Party will be unable to perform its obligations hereunder. Each Party agrees to use commercially reasonable
efforts to mitigate the effects of the Force Majeure Event and to resume performance promptly upon cessation of the Force
Majeure Event.
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c)Notices.Any notice or other communication hereunder will be sufficiently given when sent by certified mail, overnight mail
or courier service, electronic mail, or by hand to the other Party at the address specified hereinbelow (Attention: Corporate
Counsel and Chief Financial Officer) or, if not specified hereinbelow, then at the address provided above. Either Party may
change such address by providing written notice to the other Party.
Company:
8000 Decarie Blvd.,Suite 300,
Montreal, Quebec H4P 2S4
Canada
With Copy to: Legal@syntax.com
d)Severability. If any other provisions or portions thereof,within the Agreement should be held invalid or unenforceable,the
remainder of the Agreement will not be affected thereby and the remaining terms will continue in effect and be binding on the
Parties.
e)Governing Law/Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the State of
Washington except for application of its conflict of laws principles and any state orfederal provision interpreting the Agreement
more strongly against the drafter. The sole jurisdiction and venue for any litigation arising out of the Agreement will be an
appropriate federal or state court in King County,Washington.
f) Modifications. No modifications, amendment, supplement to, or waiver of this Agreement, or any of its provisions, will be
binding upon the Parties hereto unless made in writing and duly signed by both Parties.
g)Independent Contractor. Company will provide Services under this Agreement as an independent contractor and Company's
Representatives will not be considered employees of Client within the meaning or application of any federal, state, or local
laws or regulations. Nothing in the Agreement will be construed to create a partnership,joint venture,or agency relationship
between the parties.
h)Assignment and Delegation. Neither Party may assign or delegate this Agreement or any rights, duties, or obligations
hereunder to any person or entity without the express written approval of the other Party, such approval not to be
unreasonably withheld. Provided, either Party may assign this Agreement to a successor in interest by way of merger,
acquisition, or sale of all, or substantially all, of the assets related to the business or unit to which this Agreement relates. In
the event of transfer to a successor,all obligations regarding this Agreement will also transfer to such successor;any additional
requirements required by Client or such successor will be provided,at Company's sole discretion,on a time and expenses basis.
Subject to the foregoing,this Agreement will inure to the benefit of, and be binding upon,the successors and legal assigns of
the Parties hereto. This provision does not preclude Company from determining the mix of personnel, including the use of
Affiliates or subcontractors, in performing Services hereunder; however, the use by Company of Affiliates or subcontractors
will not relieve Company of its obligations hereunder.
i) Non-Solicitation. Notwithstanding anything herein to the contrary,Client will not,during the term of this Agreement and for
a period of one (1) year after its expiration or termination employ or solicit for employment(or in any way assist another in
recruiting, soliciting, or inducing to terminate their relationship with Company), directly or indirectly, any employee,
independent contractor, or consultant of Company involved in the performance of the Services (a "Restricted IT Employee"),
unless Company has granted express written consent otherwise. This provision will not prohibit Client from employing the
Company's Restricted IT Employee if it results solely from a general solicitation of the position (e.g. trade publications,
newspaper ad, internet posting,etc.).
j) Survival. The following Sections of this Agreement will survive the expiration or termination of this Agreement indefinitely:
Confidentiality and Non-Use, Intellectual Property, Indemnity, Limitation of Liability, Dispute Resolution, Miscellaneous, and
any other provision of this Agreement that must survive to fulfill its essential purpose.
k)Publicity.Each Party shall not disclose publicly that it has entered into this Agreement without the other party's prior written
consent.
1) Execution in Counterparts. The Agreement may be executed by electronic signature and/or the Parties hereto may sign the
same instrument, or each Party hereto may sign a separate counterpart of counterparts, each of which will be deemed an
original, but all of which together will constitute the same instrument.
m) Entire Agreement. This Agreement, including any Change Orders,set forth the entire agreement and understanding
between the Parties as to the subject matter hereof and supersedes all previous agreements that have been made by and
between Client and Company.Neither Party will be bound by any warranties,understandings,nor representations with respect
to such subject matter, other than as specifically set forth therein, or as set forth, or subsequent to the execution hereof, in
writing signed by an authorized representative of the Party to be bound thereby.
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