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IMPERIUM DATA NETWORKS, LLC - 3 YR SUBS. WITH GATEWAY DEFENSE SYSTEMA CONTRACT AWARD SHEET INSTRCUTIONAL GUIDE TO ASSIST YOU WITH THE INFORMATION CONTACINED HEREIN IS AVAILABLE IN THE PURCHASING SECTION OF OUR WEBPAGE AT: www.hialeahfl.gov CITY OF HIALEAH CONTRACT AWARD PURCHASING DEPARTMENT CITY OF HIALEAH CONTRACT: 3 YEAR SUBSCRIPTION WITH GATEWAY DEFENSE SYSTEM DESCRIPTION: GSA 70 CONTRACT #47QTCA-19-D-00MM CONTRACT PERIOD: 8/09/2022 – 8/08/2025 SECTION #1 – VENDOR AWARD Name: IMPERIUM DATA NETWORKS LLC Name: Contact: XAVIER CASTRO Contact: Phone: 813-450-5515 Phone: Fax: Fax: E-mail: XAVIER@IMPERIUMDATANETWORKS.COM E-mail: Name: Name: Contact: Contact: Phone: Phone: Fax: Fax: E-mail: E-mail: SECTION #2 – AWARD/BACKGROUND INFORMATION/APPLICABLE ORDINANCES/NOTES CITY COUNCIL APPROVED ON: 08/09/2022, ITEM L AMENDED AMOUNT: RESOLUTION NO: INSURANCE REQUIREMENTS: ANNUAL CONTRACT AMOUNT: $96,750.00 PERFORMANCE BOND: APPLICABLE ORDINANCES: Notes: SECTION #3 – REQUESTING DEPARTMENT CITY OF HIALEAH, DEPARTMENT OF INFORMATION TECHNOLOGY Contract Administrator: Ricardo Suarez Phone: 305-883-8051 SECTION #4 – PROCURING AGENCY CITY OF HIALEAH, DEPARTMENT OF INFORMATION TECHNOLOGY Contract Administrator: Ricardo Suarez Phone: 305-883-8051 Prepared by: MARILIN GUTIERREZ lTE M #---=L;..__.-_ AUG 0 9 2022 COUNCIL AGENDA ITEM RE supporting documents, are due the Monday of the week prio Date of Request: Requesting City Department: Requested Council Meeting Date: Action Requested from the City Council: Scop e of se rvic e (s) or product(s): Vendor: Information Technology 8/9/2022 Issue a purchase order 0 Increase a purchase order D Award a bid 0 Bid No. D Reject a bid D Bid No. 0 Speci al Events Permit D Street Closure 0 Other: Three yea r Subscription ____ ....,. ___ _ RECEIVED lmperium Data Networks (VN#24130) Expe nditure Amount: $96,750.00 Funding Source (i .e., account funding the e xpenditure): Purchasing Process : 001 .0201 .519.340 0 Competitive Bidding 0 An exception to competitive bidding applies: 0 Professional services in th e nature of consultants, accountants and attorneys 0 Sole source provider 0 Emergency based on object facts 0 Credit facilities / Competitive bidding is not required because the City is utilizing a bid that has been awarded or under contract by state, county or other governmental agencies . ili-itle o f state, county o r oth er governm e nta l agencies contract: __ GSA 70 Contract # 47QTCA-19-D-OOMM _______ _ I Piggy -b ac k contract e xpiration d ate : __ See attac hed ______ _ 0 Waive Competitive Bidding D Re as on(s) it is not adva ntageou s t o the City to utilize comp etitive bidding: Signatures: Esteban Bovo, Jr. Mayor Carl Zogby Council Pres ident Monica Perez Council Vice-President A u gu s t 1, 2022 Honorable Mayor Esteban Bovo And C ity Council Members City of Hialeah 501 Palm A venue Hialeah, FL 33 010 City of Hialeah RE: Email Protection and Gateway Defense Dear Mayor Bovo and Council members: Council Members Bryan Calvo Vivian Casals-Munoz Jacqueline Garcia-Roves Luis Rodriguez Jesus Tundidor In accordance with the City of Hialeah Code Section 2-818 -State, county, or other governmental agency bids or contracts. Whenever advantageous to th e city, the city may utili ze bids that h ave been awarded or under contract by the state, county, or o ther governmental agencies . If the city utilizes state, county, or other governmental agen cy bids, competitive bidding w ill not be required. The Information Tech nology Department respectfully requests p ermission to piggyback on GSA 70 Contrac t# 47QTCA-19 -D- OOJ'vIM for the 3 year subscription and upgrade of the City's Email Protection and Gateway Defense system and issue a purch ase order to Imperium Data Networks (VN#24130), a Value Added R esell er of the product, in th e amount of $96,750.00. This s ubscription will replace the current product in u se by the City. Funding for this purchase order will come from the Information Technology Department's Contractual Services -001.0201.5 19.340. The remaining available balance in account 001.0201.519.340 after this r equest is $ /CJ, (}~ • ·' 3 7 Imperium Data Networks is an active corporation in good standing in the State of Florida. cardo J. uarez C hief Info mation Officer ~I SAPPROVED ~DISAPPROVED APPROVED / DISAPPROVED Ruth Rubi, Executive Direc tor of Finance Manage m ent Esteban Bovo, Mayor 501 Palm Avenue, Hialeah, F lorida· 33 0 10-4719 www.hi aleahfl .go v IMPERIUM ( !_ { ! \f f 11 :1~ 4) Sales Proposal SP-09465-R7X1 R2 Vout u, .. two1S.. O\.•l1Vt..,1,•d Povn•rftiflv Date 712912022 10:49 AM Terms Net 30 lmperium Data Networks 850 8 Benjamin Rd, Suite D Tamp a, Flo rida 33634, United States 813 -450-551 5 Effective To 811912022 Sales Rep Xav ier Castro Email Xavier@ imperiumdatanetworks.com City of Hi aleah, FL Item Mfgr Description Condition Qty Unit Price EP-EGD-USR-1 M Barracu da Emai l Protection, Em ail New 125 $75.96 Gateway Defen se , per U se r, 1 0 Month BPS-RMQS-01 Barracuda Professional Services N ew $1 ,800.00 Barracuda Remote Quick Start -completion within 90 days Your Price Total Freight Grand Total All Currency Totals are in US Doll a r Comments to Customer ** Manufacturer's W arranty II II MIGRATION -Ci ty of Hialeah ID N GSA 70 Contract #47QTCA-19-D-OOMM ** 3VR Electronic Delivery All Equipment is Manufacturer Authentic All equipment typically ships within 48HRS from receipt of Purchase Order. Orders can be expedited sooner if necess ary *WARRANTY CO NDITIONS Extended $94,950.00 $1 ,800.00 $96,750.00 $96,750.00 Th e limited warranty list ed spe cifi ca ll y EXC LUDE S dam age res ul t ing from ca uses o ther than norm al wear and t ea r includ ing, wi thout limitation: neglect, accide nt; alterati o ns; improper use or mi suse; fai lu re of elec tri ca l power; air co nditionin g, or humidi ty contro l; ac t s o f God, including, without li mitation: lig htning stri kes or power surge s. Warranty and restockin g is no n-transferrable and is va lid fro m the d at e of t he orig inal purcha se only.* RESTOCKING FEE A restocking fee of 25% w ill b e cha rged for all equipment return ed t o l mperium Data Networks during th e first 90 d ays of th e w arranty period th at is deem ed as working and operatio n al upon Jmperium Data Networks rece ipt of returned equ ipm ent exclud i ng specia l ty ordered m ateria l. Th e restocking fee wi ll be in effec t for the first 90 days o f th e warranty peri od p rovided by lmper iu m Data Networks and will also apply to purchase orders that are ca nce led b efore the equipment is rece ived or shipped. All RMA 's wh eth er defectiv e or no t expi re after 14 ca lend ar d ays if not returned . **l mperium Data Netwo rks LLC. reserves the ri g ht not to Rep lace o r Cred it any RMA eq uipment //Quo te does not include shipping and hand li ng . Freight cos t wi ll be determin ed upo n d elivery method chose n by customer ** Page 1 o f 1 DNJ:)J!)i'r of C Dl LPUl{}l]1JU1l~ !Iii oi/!d!i! .'i!!il!' ,.,/ NrJt/d!! 11'dr1it;' DeRartment of State I Division of CorRorations I Search Records I Search by Entity Name I Detail by Entity Name Foreign Limited Liability Company IMPERIUM DATA NETWORKS , LLC Filing Information Document Number FEl/EIN Number Date Filed State Status ' 30 N GOULD ST 4014 SHERIDAN, WY 82801 Mailing Address 8508 BENJAMIN RD STE D TAMPA, FL 33634 M20000010157 83-0716417 11/06/2020 WY ACTIVE Registered Agent Name & Address SCARSELLA, NICHOLAS 8508 BENJAMIN RD STE D TAMPA , FL 33634 N ame Changed : 02/26/2021 Authorized Person(§.) Detail Name & Address Title MBR SCARSELLA, NICHOLAS 8915 EXPOSIT ION DR TAMPA , FL 33626 Titl e Man ager Hill, Brian 125 55th Ave NE ST P etersburg, FL 33703 Report Year 2021 2022 Pocument Images Filed Date 02/26/2021 03/01/2022 03/01/2022 --ANNUAL REPORT Vi ew image in PDF format ~~~~~~~~~~~~----' 02 /26/202 1 --ANN UAL REPORT Vi ew image in PDF format ~~~~~~~~~~~~----' 11/06/2020 --Fo reign Limited View image in PDF format Flori da Department of Sta te, Division of Corporations 001 General Fund Fiscal Year: 2022 Trial Balance - Account J>ercent A,ppro riated Expended iEncumbered iBalance Last Date 001.0201.519340 37% 515,000.00 CONTRACTUAL SERVICES 515 ,000 .00 189 ,89 1.87 47,063.55 278,044.58 7/14/2022 Total for (2) Operating Expenses 515,000.00 515,000.00 189,891.87 47 ,063.55 278,044.58 Total expenses 0201 (Fund 001) 515,000.00 IT-Information Technolog 515,000.00 189,891.87 47,063.55 278,044.58 515,000.00 Total Expenses for Fund 001 515,000.00 il.89,891.87 47,063.55 278,044.58 Expenses Fund Totals 001 General Fund $515,000.00 $189,891.87 $47,063.55 $278,044.58 Revenue/Expenses iBalance: $189,891.87 00 I Gen era l Fund Tria l Balance -Expenses Printe d : 8/3/2 022 Pag e: 2 ©TD SYNNEX GSA SCHEDULE PARTICIPATING DEALER AGREEMENT This GSA Schedule Participating Dealer Agreement ("Agreement") is made and entered into as of the last date of signature below ("Effective Date") by and between lmperium Data Networks LLC ("Dealer"), having its place of business at 8508 Benjamin Blvd Suite D Tampa , Fl 33634 , and TD SYNNEX Corporation ("TD SYNNEX"), having its place of business at 4420 I Nobel Drive, Fremont, California 94538 . BACKGROUND This Agreement governs the appointment of Dealer as a nonexclusi ve authorized dealer of Products (as defined below) to certain customers that purchase from TD SYNNEX's GSA Schedule. The General Te1ms and Conditions comprising the body of this Agreement set fo1th the general terms of such appointment. AGREEMENT DOCUMENTS The parties agree to be bound by this Agreement, which consists of this Signature Page, the General Terms and Conditions, and the applicable Exhibits indicated below: ___ Exhibit A -Ordering Instructions The duly authorized representatives of the parties have executed and delivered this Agreement as of the Effective Date. TD SYNNEX Corporation (Res ell er) lmperium Data Networks LLC By: __ E·_SIG_N_ED_by'--D_ao_icl_B,_coo_ao_o_o 2_02_2-0_6-_03_o9_:3s_:•_9 E_ST _____ By: E-S IGNEO by M elissa Menard on 2022-06-02 16:39:57 EST Name: Daniel Bren nan Title: Vice President & Semor Counsel Date: June 03, 2022 GSA Sc h edule Pruticipating Dea le r Agreem e nt 4 7QTCA I 9000MM Name: Melissa Menard Title: VP Sales Date: Ju ne 02. 2022 P.S.A. P age l o f I 0 D ecember 16, 201 9 Vers io n ()TD SYNNEX GENERAL TERMS AND CONDITIONS SECTION l DEFINITIONS . 1.1 "Confidential Information" shall mean the infonnation of a party, which infonnation is conspicuously marked with "Confidential," or "Proprietary" or other similar legend. If Confidential Information is orally disclosed it shall be identified as such at the time of disclosure and a brief written non-confidential description of the information and confirmation of the confidential natme of the information shall be sent to the recipient within thirty (30) days after the disclosure. Quantities, schedules, pricing, sales repmts and inventory reports shall be considered Confidential Information hereunder whether disclosed orally or in writing, or whether or not marked "Confidential" or "Proprieta1y." Confidential Information does not include information that: (I) was in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, without an obligation to maintain its confidentiality; (2) is or becomes generally known to the public without violation of this Agreement; (3) is obtained by the receiving patty from a third party, without an obligation to keep such info1mation confidential; or (4) is independently developed by the receiving party without use of Confidential Infonnation. 1.2 "Customer" means departments, agencies, and entities of federal, state and local governments, and prime contractors purchasing on behalf of federal, state and local governments and educational institutions th at are authorized to purchase from the GSA Schedule. 1.3 "Dealer" shall have the meaning set forth in the Signature Page. 1.4 "GSA Schedule" means TD SYNNEX's current General Services Administration Federal Supply Schedule No . 47QTCA19DOOMM, Authorized Schedule Price List, any renewals thereof and other related contracts. 1.5 "GSA Schedule Price List" is the negotiated contractual pricing for the Products that will be paid by the Customer and which includes the Industrial Funding Fee (IFF). 1.6 "Products" means the products listed on the cmrent TD SYNNEX GSA Schedule. SEC TION 2 APPOINTMENT AND LICENSE. 2.1 Appointment, License Grant and Sublicense. Subject to the terms and conditions of this Agreement and the qualification requirements delineated herein, TD SYNNEX hereby appoints Dealer , and D ealer hereby accepts the appointment, as a non- exclusive authorized dealer of Products to Customers who pmchase Products off of the GSA Schedule. TD SYNNEX grants to Dealer a nontransferable and nonexclusive li cense during the term of this Agreement to distribute the Products and any software (only as incorporated in the Products) to Customers. GSA Schedule P articipat ing D eale r Agreement 4 7QTCA l 9DOO MM Page 2 of 10 December I G. 2 0 19 V e rs ion ©TD SYNNEX 2.2 Authority. Except as expressly set fo1ih in this Agreement, Dealer will have no authority to bind TD SYNNEX or its suppliers to any contract, representation, understanding, act or deed concerning TD SYNNEX, its suppliers or any Products covered by this Agreement without TD SYNNEX 's prior written consent. This Agreement will not be deemed to establish a joint venture or partnership. Dealer will make no warranties or representations, such as representations concerning prices, terms of delivery and payment, or conditions of sale, relating to the Products unless TD SYNNEX authorizes such warranties and representations in writing. The patties recognize and agree that the dealer relationship referenced herein does not establish privity of contract between Dea ler and Customer. Dealer expressly understands that the scope of its repres entation is limited to the terms of this Agreement. 2 .3 Sales to End Users Only. Unless othe1wise authorized by TD SYNNEX in writing, Dealer shall only sell Products to Customers who do not intend to further remarket such Products . Dealer shall not market the GSA Schedule to any other customers, or in any other m anner, without the prior written agreement of TD SYNNEX. 2.4 Reserved Rights. This Agreement shall in no way limit TD SYNNEX's ability to sell, directly or indirectly, any Products to any Customers, whether off of GSA Schedule or othe1wise, and Dealer shall not be entitled to any commission or other compensation w ith respect to such sales . TD SYNNEX shall be entitled to appoint other dealer(s) for any Customers without notice or liability to Dealer. 2 .5 Procurement of Products. Any Products sold to Customer by Reseller under the GSA Schedule must be procured through TD SYNNEX. SECTION 3 DEALER OBLIGATIONS. 3.1 GSA Schedule Pricing. Dealer shall comply with the GSA Schedule Price List that is located at https://www.syn n excorp.com/us /govsolvi pri c inl!/. 3.2 Ordering Instmctions. Deal er is authorized to bill Customer and accept payment on behalf of TD SYNNEX, subject to Deal e r 's commitment to the following requirements: (A) Product purchased through this Agreement that references the GSA Schedule must be sourced, procured or othe1wise fulfilled through TD SYNNEX. Failme to comply will result in immediate tennination, whereupon Dealer shall be obligated to remit to TD SYNNEX 0.75% for the IFF and a 2% administration fee, both based on the price charged to Customer by Dealer. In addition, Dealer shall provide upon termination a point of sale report detailing such sales, which repoti shall include Custome r name, purchase order number, part number, quantity and price paid by Customer. (B) Dealer sha ll place orders and accept payment on beha lf of TD SYNNEX Corporation. G SA Schedul e P artic ipating Dealer Ag reeme nt 47QTCA i 9D OOMM Page 3 o f 10 Dece mbe r 16. 2019 Vers io n ©TD SYNNEX (C) Customer purchase orders shall be made to TD SYNNEX Corporation in c/o Dealer, and shall include Dealer's billing information . (D) Product(s) not listed on the TD SYNNEX GSA Schedule (i.e., "Open Market Products"), can be included on Customer purchase orders to Dealer. Dealer's quote to Customer and Customer's pmchase order must clearly identify product as GSA or Open Market. 3.3 Customer Purchase Order Forms. Dealer agrees to provide a copy of the Customer's purchase order when placing an order to TD SYNNEX through this Agreement. (A) At the time the order is placed by Dealer, TD SYNNEX will accrue monies for the IFF and track the total sale price to the Customer for GSA reporting requirements pursuant to the GSA Schedule. Procurement through TD SYNNEX alleviates Dealer of this responsibility. 3.4 Audit. TD SYNNEX shall, at all reasonable times and for three (3) years after termination or expiration of the GSA Schedule, have full access to Dealer's books , records, files and related conespondence relating to Dealer's performance under this Agreement. S ECTION 4 ORDERS AND DELIVERY 4. l Ordering Information. Dealer shall ensure that Customers are eligible to purchase off of the GSA Schedule and that the ordering information is as required under the GSA Schedule. 4.2 Order Terms. All orders taken and all sales made under this Agreement shall be subject to all of the terms and conditions of the GSA Schedule. Except as otherwise set forth in this Section 4.2, Dealer's Product prices for Customers shall be as stated in the GSA Schedule Price List. Notwithstanding the foregoing , Dealer is authorized to offer spot price reductions to Customers as necessary, provided that no such spot price reduction shall reduce the price for any Product to a price the same as or lower than the Reseller's price for such Product from TD SYNNEX. 4.3 Order Acceptance. All orders s hall be subject to TD SYNNEX's acceptance, and TD SYNNEX shall have no liability for any orders it rejects . 4.4 Shipment and Payment. TD SYNNEX will supply the Products for accepted orders subject to availability. Products will be shipped to Dealer only if so noted on Customer's purchase order. 4.5 Timely Shipment. TD SYNNEX will use commercially rea so nable efforts to meet the Customer's requested delivery date at the location specified by the Customer. GSA Sc hedu le Pan ic ipatin g Dealer Agree ment 47 QTCA 19DO OMM Pa ge 4 of 10 December 16, 2019 Version ©TD SYNNEX 4.6 Timely Processing. Dealer will use its best commercial efforts to process orders and to provide customer service and support in a timely manner. 4 .7 Invoices. Dealer will invoice the Customer for orders within a reasonable time according to contract requirements. SECTION 5 ADDITIONAL DUTIES OF DEALER 5.1 Best Efforts. Dealer shall use its best effo1ts to promote the GSA Schedule and sell the Products to Customers, all consistent with good business ethics and in a manner that will reflect favorably on T D SYNNEX. 5.2 Compliance. Dealer shall comply with (a) all applicable terms and conditions of the GSA Schedule; (b) all applicable federal, state and local laws, rules , regulations, ordinances and executive orders; and (c) all procedmes, policies and practices in effect from time to time relating to the GSA Schedule. If either party receives any notice or becomes aware of any violation of any applicable law, statute, rule, regulation or ordinance by the Products or the distribution thereof, such pa1ty shall promptly notify the other party of such notice or violation . 5 .3 Conduct of Dealer. Dealer shall at all times refrain from engaging in any illega l, unfair, or decepti ve trade practices or unethical business practices whatsoever, whether with respect to the GSA Schedule, the Products or otherwise. Dealer shall not make any false or misleading representations to Customers or other persons w ith regard to TD SYNNEX, the GSA Schedule or the Products. Dealer shall not make any representations with respect to the specifications, features, or capabilities of Products which are not consistent with those described in the manufacturer's publicly-available Product documentation. 5.4 No Contract Modifi cation . Dealer shall not to alter, change, or modify in any way, any contract or order under any contract between TD SYNNEX and any Customer. Dealer will indemnify and hold TD SYNNEX harmless from any alteration , change, or modification to a contract between TD SYNNEX and any Customer caused by the actions of Dealer. 5.5 Failure to comply w ith any of the provisions of this section w ill result in immediate termination of Dealer . SECTION 6 QUALIFICATIONS OF D EALER 6 .1 Authorizations. Dealer must hold and m aintain vendor authorizations, where applicable, to re sell Products from the GSA Schedule. 6.2 Good Standin g. D eale r's business and c redit accounts w ith TD SYNNE X must be c urrent and in good standing. Dealer cannot have defaulted on any payments due to TD SYNNEX and must have a hi story of prompt and timely payments for all amounts due TD SYNNEX. GSA Sc hedul e Pa rti c ipating Deale r Agreeme nt 47QTCA I 9DO OMM Page 5 of 10 December 16. 2 0 19 Vers io n ©TD SYNNEX 6.3 Dealer Financials. Dealer agrees to provide TD SYNNEX with updated credit information on request. Dealer understands and agrees that TD SYNNEX may order a credit report in connection with the Agreement. SECTION 7 CONFIDENTIALITY. 7 . I Confidentiality Obligations. The receiving party shall protect the confidentiality and secrecy of the disclosing party's Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own inf01mation of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other's Confidential Information of restrictions required to comply with this Section 7.1. Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section 7.1. Notwithstanding the foregoing, each party may disclose the other pmty's Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving patty uses reasonable effo11s to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure. Each party retains for itself all proprieta1y rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party's possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving patty may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder. Each party understands that the party receiving Confidential Information may now or in the future be developing proprieta1y info1mation internally, or receiving proprietary information from third pa11ies in confidence that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be constmed as a representation or inference that the receiving party will not develop products, for itself or others, that compete with the products, processes, systems or methods contemplated by disclosed Confidential Infonnation. Each party acknowledges that any material violation of the rights and obligations provided in this Section 7.1 may result in immediate and irreparable injmy to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, prelimina1y, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 13.6, each party hereby submits itself to the personal jurisdiction of the com1s of competent subject matter jmisdiction for purposes of entty of such injunctive relief. S E CTION 8 STAF FING . 8.1 Staffing. Each of the parties agrees not to solicit, hire or engage any employees of the other party that are directly involved in the activities of the other party in G SA Sc hedule Pa11ic ipating Deal e r Agreem ent 47QTCA I 9DOOMM Page 6 of 10 December t 6. 201 9 Vers io n ©TD SYNNEX connection with this Agreement during the period such employees are employed by the other paity and for a period of one hundred eighty ( 180) days after the date of such employee's tennination of employment from the other party. Each party acknowledges that any material violation of the rights and obligations provided in this Section 8.1 may result in immediate and irreparable injmy to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 13.6, each party hereby submits itself to the personal jmisdiction of the comts of competent subject matter jurisdiction for purposes of entry of such injunctive relief. SECTION 9 LIMITATION OF LIABILITY. 9.1 EXCEPT FOR A BREACH OF SECTION 7.1 OR SECTION 8.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE T E RMS AND CONDITIONS, OR ANY AGREEMENTS INTO WHICH THEY ARE IN CORPORA TED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR HEREUNDER. SECTION 10 INDEMNIFTCA TION 10.1 Dealer Indemnification. Dealer will indemnify, defend and hold harmless TD SYNNEX, its dealers, employees, successors, assigns, parent company and affiliated companies (each individually an "Indemnified Party" and collectively the ''Indemnified Parties") from and against any and all claims, demands, causes of action, expenses (including reasonable attorneys' fees) and liabilities, arising out of Dealer's acts or omissions relating in any way to its activities in connection with this Agreement, or actual or alleged misrepresentation r e lating to any of the Indemnified Parties, the GSA Schedule, the Products or this Agreement, regardless of th e form of action. Dealer shall pay any damages and costs assessed against the Indemnified Parties in connection with such claim. Any Indemnified Party shall have the right, at it s own expense, to participate and be represented in any such action, suit or proceeding by its own attorneys. Dealer shall not enter into any settlement that affects an Indemnified Patty's rights or interests without such Indemnified Party's prior written approval. 10 .2 SYNNEX Indemnific a tion. TD SYNNEX will indem ni fy, defend and hold harmless Dealer from and against any and all claims, demands, causes of action, expenses (including reasonable attorneys' fees) and liabilities, arising out of TD SYNNEX's G SA Sc hedule Pa nic ipating Dea le r Agre e me nt 4 7QTCA I 9DOOMM Page 7 oi' I 0 Decem ber 16. 201 9 Vers io n ({)TD SYNNEX wrongful acts or omissions relating in any way to its act1v1t1es in connection with this Agreement, or actual or alleged misrepresentation relating to the GSA Schedule, the Products or this Agreement, regardless of the form of action. TD SYNNEX shall pay any damages and costs assessed against Dealer in connection with such claim. Dealer shall have the right, at its own expense, to participate and be represented in any such action, suit or proceeding by its own attorneys. TD SYNNEX shall not enter into any settlement that affects Dealer's rights or interests without Dealer's prior written approval. SECTION 11 INTELLECTUAL PROPERTY 11. l Nothing contained in this Agreement shall give Dealer any interest, license or right in any trademark, name, logo, or other trade designation of TD SYNNEX or any TD SYNNEX parent or affiliated company. Dealer agrees that it will not at any time dming or after this Agreement asse11 or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any trade name, trademark or logo belonging to or licensed to any TD SYNNEX parent or affiliated company or the rights therein. SECTION 12 TERM AND TERMINATION. 12.1 Term. The initial term of this Agreement shall commence on the Effective Date of this Agreement and continue until the expiration of the then-current GSA Schedule, with automatic one year renewals unless te1minated according to one or more of the following provisions : (A) At any time upon the mutual written agreement of both parties; (B) By Dealer with or without cause upon thi1ty (30) days prior written notice of termination to TD SYNNEX; (C) By either party, following a material breach of this Agreement by the other party and the breaching pa11y's failure to cme such breach within thirty (30) days of it receiving written notice of such breach; (D) By TD SYNNEX, immediately upon written notice , in the event D ealer breach es Section 3.2(A) or Section 5 ; and (E) By either party upon the other party seeking an order for relief under the bankrnptcy laws of the United States or similar laws of any other jmisdiction, a composition with or assignment for the benefit of creditors, or dissolution or liquidation. (F) Notwithstanding the foregoing, TD SYNNEX may in its sole discretion , a nd without any fmther liability or obligation of any kind, revoke its appointment of Dealer by providing five (5) business days written notice. GSA Schedule Panic ipating Deale r Agreement 4 7QTCA I 9DOOM M Page 8 o f I 0 December 16. 20 19 Vers ion ({)TD SYNNEX 12.2 Effect of Termination. The te1mination of this Agreement shall in no way affect the obligations of either party regarding orders accepted by TD SYNNEX prior to the effective date of such termination. 12 .3 Return of Confidential lnfonnation. Upon termination of this Agreement by either party, each party shall return all originals and copies of Confidential Information or destroy the same with certification of such destruction, provided, however, that the Receiving Party may retain an archival copy of Confidential Information as required by record retention policies or law . 12.4 Survival. Provisions herein which by their nature extend beyond the tennination or expiration of this Agreement will remain in effect until fulfilled. SECTION 13 MISCELLANEOUS. 13. l E ntire Agreement and Modification. This Agreement shall constitute the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the pa1iies relating to such transactions. The Exhibits attached hereto are considered to be a part of this Agreement. No modification of this Agreement shall be binding, unless in writing and signed by an authorized representative of each party. 13 .2 Assignment. This Agreement shall be binding upon and inure to th e benefit of the pa11ies and their respective successors and pennitted assigns. Neither pa1ty hereto shall in any way sell, transfer, assign, or otherwise dispose of any of the rights, privileges, duties and obligations granted or imposed upon it under this Agreement; provided, ho wever, TD SYNNEX shall have the right to assign its rights, duties and responsibilities under this Agreement to an affiliate of TD SYNNEX. An affiliate of TD SYNNEX means any corporation, pa11nership or other business entity which controls , is controlled by, or is under common control with TD SYNNEX. 13 .3 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforcea bl e in any respect, except in those instances where removal or e limination of such invalid, ill egal, or unenforceable provision or provisions would result in a failure of consideration under this Agreement, su ch invalidity, illegality or unenforceability sha ll be severed and shall not affect any other provision here of. Furthe1more, the severed provision shall be replaced by a provision which comes closest to such severed provision, or part thereof, in language and intent, without being invalid, ill egal or unenforceable. 13.4 Force Majeure. N either party shall be liable to the other for any delay in performance or fai lure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether an actual declaration is made or not), insmrection, riot, c ivil commotion, act of public enemy, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, computer v irus or worm, or similar causes beyond the reasonable control of such pa1ty. I f any event of force majeme occurs, th e pa1ty GSA Sc hedule P a ni c ipating Dea le r Agreement 4 7QT CA i 9DOO MM Page 9or 10 December 16, 20 19 Version ({)TD SYNNEX affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event. 13 .5 Independent Contractor. TD SYNNEX and Dealer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties. 13.6 Disputes. Both pat1ies agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. lf necessary, such disputes shall be escalated to appropriate senior management of each party. In the event that such good faith settlements fail, excluding any and all disputes and controversies arising out of or in connection with Sections 7.1 or 8.1 , any and all other disputes and controversies of every kind and nature between the pat1ies arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement s hall be submitted to binding arbitration, pursuant to the Rules of the American Arbitration Association, before a single arbitrator in Alameda County, California. In the event the pai1ies cannot agree on the arbitrator, then an administrator of the American Arbitration Association shall select an appropriate arbitrator from among arbitrators of the American Arbitration Association with experience in commercial disputes related to technology products. In the event of any litigation arising out of this Agreement or its enforcement by either pat1y, the prevailing party shall be entitled to recover as pat1 of any judgment, reasonable attorneys' fees and court costs . 13.7 No Waiver. The failure of either pa11y to require perfonnance by the other party of any provision of this Agreement shall not affect the full right to require such performance at any later time, nor shall the waiver by a party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision it se lf. 13.8 Jurisprudence. This Agreement shall be governed by and construed in accordance with the laws of California and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. 13.9 Notice. All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and wi ll be effective upon receipt. 13 .10 Exhibits. Each Exhibit attached hereto is incorporated herein by this reference . The pa11ies may amend any Exhibit from time to time by entering into a separate written agreement, referencing such Exhibit and specifying the amendment thereto, signed by an authori zed employee of each of the parties. GSA Schedule P a nic ipat ing Dealer A greement 4 7QTCA i 9D OOMM * * * * * * Page I 0 of I 0 December 16, 201 9 Vers io n