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19 - Master Service Agreement with SpearTip for 12-month cybersecurity professional servicesItem No. 19 Memorandum TO: Mayor, Mayor Pro Tem & City Council FROM: Grayson Path, City Manager Russell Thrasher, Clark Townsdin, IT Department SUBJECT: Cyber Security Master Service Agreement DATE: December 13, 2021 BACKGROUND: In September 2021, the City experienced a minor cyber breach. After working with the City's insurance carrier and third party vendors, including SpearTip, LLC, the matter was successfully addressed without incident. As part of our analysis, it was determined that new software exists that can better safeguard the City's cyber presence. STATUS OF ISSUE: SpearTip, LLC was engaged to successfully address the City's cyber issues during the prior breach. Their proprietary software is available for long term use under their direct oversight. In an age of continuously advancing cyber security threats, it is strongly recommended that the City enter into a Master Services Agreement with SpearTip, LLC to provide cyber security software designed to protect the City's online data and processing. BUDGET: The agreement is for one year at $2,400.00/month, otherwise $28,800.00/year. This was not budgeted, but following the cyber breach, and after researching this issue extensively, it is highly recommended that we proceed and not wait until another FY. There are additional advancements in software and hardware we are going to have to research and purchase in the future, but this agreement should protect us for the time being. OPTIONS: 1. Approve the Master Services Agreement with SpearTip, LLC in the amount of $28,800.00 and authorize the City Manager to sign. 2. Request additional information and/or reject the Amendments. RECOMMENDATION: 1. Approve the Master Services Agreement with SpearTip, LLC in the amount of $28,800.00 and authorize the City Manager to sign. MSA 2020 - for use in North America r MASTER SERVICES AGREEMENT This Master Services Agreement (the "Agreement") is made and entered into as of November 5, 2021 (the "Effective Date"), by and between The City of Paris, a corporation formed in the state of TX, with its principal offices at 135 SE 15f St, Paris, TX 75460 and its subsidiaries ("Client") and SpearTip, LLC ("SpearTip"), a Missouri limited liability company with its principal offices at 1714 Deer Tracks Trail Suite 150, Saint Louis, MO 63131-1847. 1. SERVICES SpearTip agrees to provide all services necessary to perform the work ("Services") as described in a statement of work or proposal ("SOW/Proposal") as may be entered into between the parties from time to time for the compensation set forth therein. Each SOW/Proposal will incorporate the terms and conditions of this Agreement by reference and together will constitute the entire Agreement between the parties. 2. INDEPENDENT CONTRACTOR Each party, in all matters relating to this Agreement, will act as an independent contractor. Neither party will have authority nor will either party represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other, or to represent the other as an agent, employee or in any other capacity. Neither execution nor performance of this Agreement will be construed to have established any agency, joint venture or partnership. Neither party will make any warranties or representations on behalf of the other party. 3. COMPENSATION 3.1 Professional Service Fees. Client agrees to pay SpearTip the rates set forth in each SOW/Proposal for the Services described therein. 3.2 Expenses. Client will pay SpearTip travel and expenses reasonably incurred in performing its obligations under the Agreement, including meals, rental car, travel, lodging, miscellaneous incidental expenses, and expenses for any non -routine supplies and equipment expressly called for in a SOW/Proposal or approved by Client. In each applicable SOW/Proposal, Client and SpearTip will make reasonable expense plans covering the pre -approval of travel related expenses generally for that SOW/Proposal, including use of Client to book lodging or airline flights. 3.3 Invoices. SpearTip will submit invoices to the individual at the Client address designated in the SOW/Proposal or electronically via instructions provided by Client. Sales taxes, if any, imposed on the Services, will be itemized on the invoice and shall be paid to SpearTip. Unless the SOW/Proposal provides otherwise, upon a fully executed SOW/Proposal, SpearTip will invoice Client for the first and last two months of the term of the Agreement. Thereafter, Client will be invoiced as set forth in the SOW/Proposal. All other expenses and non -service deliverables will be submitted to Client every two weeks. All invoices are due and payable upon receipt. 3.4 Payment Terms. Client will pay fees, charges, and expenses to SpearTip in United States Dollars, by wire transfer of funds to an account designated by SpearTip or by check sent to SpearTip at an address to be designated by SpearTip. If there are any good faith disputes related to an invoice, Client will immediately pay the undisputed portion of the invoice and notify SpearTip in writing of Client's basis for withholding payment of the disputed amount. Disputes with respect to invoiced amounts will be deemed waived if not raised in writing. Upon receipt of Client's dispute notice, SpearTip and Client will work together in good faith to resolve such dispute in a prompt and mutually acceptable manner. If the dispute is not resolved within 30 days after receipt of Client's dispute notice, the parties will resolve the issue pursuant to MSA 2020 1 Confidential and Proprietary MSA 2020 - for use in North America the provisions of Section 15. Client will pay any disputed amounts within five calendar days after applicable disputed matters have been resolved. 3.5 Late Payment Interest; Convenience Fee. If Client does not pay an invoice within 20 calendar days after receipt, SpearTip may add an interest charge of one and one-half percent (1-1/2%) per month, or the maximum rate allowed by law if less; this interest will begin to accrue on the 211h day after Client's receipt of SpearTip's invoice and will accumulate on the outstanding balance on a daily basis until paid in full. Payments of invoices made by credit card will incur a convenience fee of 2.5% of the invoice amount, or the amount charged to SpearTip for processing; whichever is less. 4. CLIENT RESPONSIBILITIES 4.1 Client Personnel, Facilities and Resources. Client will provide SpearTip with timely access to appropriate Client personnel and will arrange for SpearTip personnel to have suitable and safe access to Client's facilities and systems. Client will also provide suitable office space and associated resources for SpearTip personnel working on-site, including all necessary computing and office support resources, and will undertake any other responsibilities described in the applicable SOW/Proposal. 4.2 Approvals and Information. Client will respond promptly to any SpearTip request to provide information, approvals, or authorizations that are reasonably necessary for SpearTip to perform the Services in accordance with the requirements of the SOW/Proposal. In addition, SpearTip may request instructions, directions or decisions from Client. SpearTip will document the requests and may present a default instruction, direction or decision. If the SOW/Proposal does not specify a period for Client's response, the time period will be seven (7) calendar days. If Client does not respond within the specified time period, SpearTip will be entitled to proceed on the basis of the default instruction, direction or decision, or in its reasonable discretion. 4.3 Sensor Issues. Client is responsible for resolving all sensor health issues. SpearTip may identify any sensor health issues to Client as part of its Deliverables. Client is responsible for investigating sensor issues including the deployment of appropriate sensors on all nodes, hosts or endpoints. SpearTip is not responsible for detecting and responding to malicious threats as result of blind spots in Client's network from the failure Client's failure to install appropriate sensors. 5. SPEARTIP RESPONSIBILITIES SpearTip's specific responsibilities in performing the Services including any service level agreements will be set out in the applicable SOW/Proposal. SpearTip's employees, consultants and agents will use reasonable business practices while performing the Services and will, as much as possible given the nature of the Services, observe the working hours, working rules, and policies of Client while working on Client's premises, including but not limited to compliance with Client's technology security handbook or Client's information technology policies. 6. CHANGE ORDERS 6.1 Changes to Statements of Work. Either party may propose changes to the scope, nature or time schedule of the Services being performed under an applicable SOW/Proposal. Requests for changes will be submitted to the other party in writing for consideration of feasibility and likely effect on the cost and schedule for performance of Services. The parties will mutually agree to any proposed changes, including resulting equitable adjustments to costs and schedules for the performance of Services. Proposed changes will be affected through written amendments to the affected SOW/Proposal, signed by both parties (referred to as "Change Orders"). SpearTip may proceed with performing changed work following receipt of an oral instruction to proceed by Client's Project Manager, as designated in the SOW/Proposal, or another authorized representative provided that SpearTip sends a written confirmation of such instruction to the Client Project Manager. 6.2 Effect on Prices. Amounts payable pursuant to Change Orders will be in addition to any compensation or expenses specified in the SOW/Proposal. If a Change Order will have the effect of delaying the expected completion date of any milestones under a SOW/Proposal, the amounts payable under the Change Order will include a reasonable carrying charge reflecting SpearTip's cost of funds for the rescheduled milestone(s). MSA 2020 2 Confidential and Proprietary MSA 2020 - for use in North America 7. ACCEPTANCE As part of the Services, SpearTip will provide Client with the Deliverables identified in the SOW/Proposal. SpearTip's conformity to the specifications and service levels set forth in the SOW/Proposal will solely determine Client's right to reject the Deliverables. Client shall report any deficiencies in the Deliverables in writing within ten (10) days of receipt specifying in detail the deficiencies. If Client does not report any deficiencies within the ten (10) day period, the Deliverables will be deemed accepted. SpearTip will correct the deficiencies within a reasonable time period. Client acknowledges that SpearTip's ability to correct any defects in the Deliverables is dependent upon and may be delayed due to third -party vendors or licensors. 8. NOT AN EXCLUSIVE AGREEMENT It is expressly understood and agreed that this Agreement does not grant to SpearTip any exclusive rights to do business with Client and that Client may contract with other suppliers for the procurement of comparable services. Client makes no guarantee or commitment for any minimum or maximum amount of Services to be purchased under this Agreement. Nothing in this Agreement will prevent SpearTip from marketing, developing, using and performing services or delivering products similar to or competitive with the Services furnished under the Agreement. 9. PROPRIETARY RIGHTS 9.1 Work Product. Except for SpearTip Pre -Existing IP (as defined below), any material or data generated, designed or developed while performing the Services, including any intellectual property rights and the intellectual property rights therein (collectively the "Work Product") and all rights, title and interest in and to the Work Product shall belong to Client. SpearTip assigns all intellectual property rights in the Work Product to Client. 9.2 Preexisting SpearTip Materials. SpearTip retains all right, title and interest in and to SpearTip Pre -Existing IP. "SpearTip Pre -Existing IP" shall mean all pre-existing information, data, software, tools and other materials developed by or for SpearTip prior to commencement of the Services or developed by or for SpearTip independently outside the scope of the Services. All improvements, add-ons or modifications to SpearTip Pre -Existing IP shall be the exclusive property of SpearTip. SpearTip grants to Client a perpetual, paid-up, non-exclusive, non -transferable license to use the SpearTip Pre -Existing IP for Client's internal business purposes, any SpearTip Pre -Existing IP which are incorporated in a Deliverable or necessary for Client to use as a Deliverable. 9.3 Reservation of Rights. Neither party will be prevented from using ideas, concepts, expressions, techniques, know-how, skills and experience possessed by it prior to, or developed or learned by it in the course of, performance of its obligations under the Agreement. 10. CONFIDENTIALITY/NONDISCLOSURE 10.1 Confidential Information, Standard of Care. Subject to the requirements of the Texas Public Information Act in the performance of or otherwise in connection with this Agreement, one party ("Disclosing Party") may disclose to the other party ("Recipient") certain Confidential Information of the Disclosing Party. "Confidential Information" will mean any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, services, development, inventions, processes, engineering, marketing, techniques, clients, customers, insureds, policyholders, claimants, Client's sales agents, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) disclosed by the Disclosing Party to Recipient either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually): (i) that has been marked as confidential; (ii) whose confidential nature has been made known by Disclosing Party, orally or in writing, to Recipient; or (iii) that due to its character and nature, a reasonable person under like circumstances would treat as confidential. The Recipient will treat such Confidential Information as confidential and proprietary to the Disclosing Party and Recipient will not be deemed by virtue of the Agreement or any access to the Disclosing Party's Confidential Information to have acquired any right or interest in or to any such Confidential Information. During the Term of this Agreement and for a period of two (2) years thereafter Recipient will: (a) use the Confidential Information of the Disclosing Party solely for the purposes set forth in this Agreement; (b) take suitable precautions and measures to maintain the confidentiality of the Confidential Information of the Disclosing Party; (c) afford Disclosing Party's Confidential Information at least the same level of protection against unauthorized MSA 2020 3 Confidential and Proprietary MSA 2020 - for use in North America disclosure or use as Recipient normally uses to protect its own information of a similar character, but in no event less than reasonable care; (d) not disclose or otherwise furnish the Confidential Information of the Disclosing Party to any third party other than employees or independent contractors of the Recipient who have a need to know the Confidential Information to perform its obligations under this Agreement, provided such employees or independent contractors are obligated to maintain the confidentiality of the Confidential Information; and (e) to notify the furnishing party promptly of any unauthorized use or disclosure of Disclosing Party's Confidential Information and cooperate with and assist Disclosing Party in every reasonable way to stop or minimize such unauthorized use or disclosure at receiving party's cost. 10.2 Exclusions, Relief. The obligations under this section will not apply to any: (a) approved use or approved disclosure of any information pursuant to the exercise of the Disclosing Party's rights under this Agreement; (b) information that is now or hereafter becomes generally known or available to the public other than through a violation of this Agreement; (c) information that is obtained by the Recipient from a third party (other than in connection with this Agreement) who was not under any obligation of secrecy or confidentiality with respect to such information; (d) information that is independently developed by the Recipient without reference to any Confidential Information; and (e) any disclosure made with the explicit consent of the Disclosing Party. Any disclosure required by a validly issued administrative or judicial process or subpoena will not violate this section, provided that the Recipient uses reasonable efforts to give advance notice to and cooperate with the Disclosing Party in connection with any such disclosure and, provided further, the Recipient limits such disclosure to only that information that is required to be disclosed. In the event a court determines that the Recipient has breached, attempted or threatened to breach, any of its confidentiality obligations to the Disclosing Party or the Disclosing Party's proprietary rights, the parties agree that the Disclosing Party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. 10.3 Return or Destruction of Confidential Information. Upon written request, or in any event, upon any termination or expiration of the Agreement and any applicable SOW/Proposals, the Recipient will do one of the following with all copies of any Confidential Information of the Disclosing Party in its possession or control to which the receiving party does not possess under a valid license: (i) promptly return all such items to the Disclosing Party; or (ii) destroy all such items and provide written confirmation of such destruction by a duly authorized officer who supervised the destruction. Provided that SpearTip may retain one (1) copy of all of its work products (including working papers) produced under the Agreement for archival purposes for a period not to exceed five years from the date of termination or expiration of the Agreement. 10.4 Retained Rights. Each party is free to develop products independently without the use of the other's Confidential Information. Except for limitations set forth in a SOW/Proposal, neither party is obligated to restrict the future work assignments of a party's employees, contractors or representatives who have had access to Confidential Information. In addition, except for limitations on the parties set forth in a SOW/Proposal, the parties and their respective employees, agents and representatives are free to use the information retained in their unaided memories without reference to or use of a party's Confidential Information , including ideas, concepts, know-how or techniques, without the duty to account to the other, so long as such party or their employee, agent or representative does not use and does not disclose the other party's Confidential Information in violation of this Section 10. Nothing contained herein shall be construed to grant either party any rights to or under the other party's Confidential Information, including without limitation any copyrights, trademarks, patents, trade secrets, licenses or ability to grant licenses except as may be specifically set forth in a SOW/Proposal. All improvements, add-ons or modifications to any party's Confidential Information shall remain the exclusive property of the party who owns or has rights to such Confidential Information. 10.5 Public Information Request to Client. The Parties acknowledge that Client is a Texas Government Body subject to the Texas Public Information Act. Upon receipt of a request for Confidential Information as defined herein, Client will follow the requirements of said Act including but not limited to seeking a ruling from the Texas Office of the Attorney General and notifying SpearTip of same so that SpearTip may address its concerns to that Office. The Parties agree to be bound by the ruling of the Office with respect to disclosure of Confidential Information to a requestor under the act. 11. INSURANCE SpearTip will maintain the following policies of insurance covering all Services furnished by SpearTip to Client during the Term of this Agreement. MSA 2020 4 Confidential and Proprietary MSA 2020 - for use in North America 11.1 General Liability (Bodily Injury, Property Damage, Personal and Advertising) insurance, in an amount not less than One Million Dollars ($1,000,000) per occurrence with an annual aggregate of not less than Two Million Dollars ($2,000,000); 11.2 Network Security insurance in an amount not less than Five Million Dollars ($5,000,000) per occurrence. 11.3 Technology Errors and Omissions insurance in an amount not less than Five Million Dollars ($5,000,000) per occurrence. 11.4 Automobile liability insurance (covering hired and non -owned vehicles) in a combined single limit of not less than One Million Dollars ($1,000,000); 11.5 Excess Liability insurance in an amount not less than Four Million Dollars ($4,000,000) per occurrence with an annual aggregate of not less than Four Million Dollars ($4,000,000); 11.6 Employee Dishonesty (Theft) in the amount of not less than One Million Dollars ($1,000,000) per claim; 11.7 Workers Compensation and Employees Liability Insurance as prescribed by law. Upon request, SpearTip will provide certificates of insurance for the coverages specified above. This would provide that in the event of cancellation or material modification thereof, written notice of such cancellation or modification would be given to Client at least thirty (30) days prior to the effective date of such cancellation or modification. 12. WARRANTIES AND REMEDIES FOR BREACH OF WARRANTY 12.1 Quality of Services. SpearTip warrants that the Services will be performed through its best efforts and in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services. 12.2 Place of Correction. SpearTip may perform the investigation and correction services pursuant to this section at SpearTip's offices to the extent possible. If Client requires SpearTip to travel to Client's place of business, Client will reimburse SpearTip for the reasonable travel time and expenses of SpearTip's personnel. If a reported breach of warranty is attributable to a cause other than the SpearTip Services, then SpearTip will be entitled to payment for its investigation and correction efforts on a time and materials basis at the rates applicable to the SOW/Proposal. 12.3 Compliance with Laws; Background Checks. -In performing the Services, SpearTip shall comply with all federal, state and local laws and regulations. SpearTip represents and warrants that all of its employees and contractors that perform any type of Service for Client, or has access to Client's Confidential Information, have undergone a comprehensive criminal history records check and passed same without exception and with satisfactory results 12.4 Exclusions. 12.4.1 SpearTip shall have no liability pertaining to any software or hardware deficiencies and Client's remedy for such deficiencies shall be solely against the software vendor or hardware manufacturer. 12.4.2 SpearTip does not warrant that the operation of hardware, equipment, Deliverables or of any other software will be uninterrupted or error -free. Client acknowledges that it alone is responsible for the results of using the software, hardware and equipment used in its business operations, including without limitation the completeness, accuracy and content of such results. Client acknowledges further that it alone is responsible for independent verification and testing of any such results prior to using them. 12.4.3 During the course of providing the Services, SpearTip may provide findings and recommendations to Client. SpearTip is not liable for an intrusion of malware, viruses, worms and/or other similar intrusions in Client's environment. SpearTip makes no warranty of a guaranteed protective barrier. SpearTip disclaims all liability for any of its findings or recommendations it makes to Client during the term (and any renewal term) of this Agreement. 12.5 Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON -INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. MSA 2020 5 Confidential and Proprietary MSA 2020 - for use in North America 13. TERM AND TERMINATION 13.1 Term. This Agreement will be for a period of one (1) year ("Term") commencing on the Effective Date. This Agreement will automatically be renewed for successive one year periods, unless a party provides the other with written notice at least 45 calendar days prior to its next scheduled expiration stating that it does not wish for this Agreement to be renewed. If this Agreement expires, its terms and conditions will continue to apply to any SOW/Proposal then in effect until the SOW/Proposal expires or terminates. 13.2 Termination of a Statement of Work/Proposal for Convenience. Either party may terminate any outstanding SOW/Proposal, or any portion of a SOW/Proposal, for convenience upon at least 60 calendar days' prior written notice to the other party. Upon receipt of such notice, SpearTip will take steps to wind down work in progress in an orderly fashion during the notice period. At the end of the notice period and upon payment by Client as outlined below, SpearTip will deliver to Client whatever Deliverables, completed or in -progress, that then exist. 13.3 Termination of a Statement of Work for Cause. If either party believes that the other party has failed to perform an obligation a party is obliged to perform under a SOW/Proposal that is so fundamental that the failure to perform the obligation defeats the essential purpose of the SOW/Proposal (a "Breach"), then that party may provide written notice directed to the breaching party's Project Manager for the applicable SOW/Proposal describing the alleged Breach in reasonable detail. If the breaching party does not, within 30 calendar days (15 days for payment defaults) after receiving such written notice, either cure the Breach or develop a plan to cure the Breach (if the Breach is not one that can reasonably be cured within 30 calendar days) and diligently proceed according to the plan until the Breach has been cured, then the non -breaching party may terminate the affected SOW/Proposal, in whole or in part, for cause by written notice to the applicable Project Manager of the breaching party. Prior to termination of a SOW/Proposal for cause, the party receiving the initial notice under the preceding sentence will be afforded an opportunity to meet with a senior management representative of the non -breaching party to explain its position. The termination of any particular SOW/Proposal will not affect the parties' respective rights, duties and obligations under any other SOW/Proposal then in effect. 13.4 Termination Due to Insolvency. Either party may terminate this Agreement or an SOW/Proposal immediately if the other party (a) becomes or is declared insolvent or bankrupt; (b) is the subject of any proceeding relating to its liquidation or insolvency; (c) makes an assignment for the benefit of its creditors; or (d) enters into an agreement for the composition, extension or readjustment of all or substantially all of its assets. 13.5 Payment upon Termination. SpearTip will be paid for all Services performed through the effective date of termination, plus associated expenses and termination costs as follows: 14.5.1 SpearTip will be paid all fees for Services actually performed through the effective date of termination; 14.5.2 SpearTip will be paid for expenses incurred through the effective date of termination, plus costs and expenses reasonably incurred by SpearTip to terminate its performance of the Services earlier than anticipated, including without limitation costs to relocate any SpearTip personnel from Client's site, and costs to terminate any special contracts or leases entered into for the purpose of performing the terminated Services. SpearTip will use commercially reasonable efforts to minimize Client's termination costs under this section; and, 14.5.3 If Client terminates this Agreement for Convenience, in addition to the amount Client owes SpearTip pursuant to Sections 14.5.1 and 14.5.2, Client will owe SpearTip early termination fees as follows: (i) If the SOW/Proposal is terminated during the first year of the term or any renewal, term, fifty percent (50%) of the total fees that would have been earned during the balance of the term or renewal term; (ii) If the SOW/Proposal is terminated during the second year of the term or any renewal term, forty percent (40%) of the total fees that would have been earned during the balance of the term or renewal term; (iii) If the SOW/Proposal is terminated during the third year of the term or any renewal, term, thirty percent (30%) of the total fees that would have been earned during the balance of the term or renewal term. Any early termination fees will be due on the effective date of termination MSA 2020 6 Confidential and Proprietary MSA 2020 - for use in North America 14. LAW AND DISPUTES 14.1 Dispute Resolution. The parties agree to mediate all disputes arising under the Agreement until either the designated representatives conducting the mediation conclude that resolution through continued negotiation does not appear likely or thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief. Such mediation will be conducted by each party designating a duly authorized officer or other representative to represent the party, with authority to bind the party, and the parties agree to exchange all non -privileged information with respect to the dispute that the parties believe to be appropriate and germane. 14.2 Governing Law. The Agreement will be governed by the laws of the State of Texas, without regard to conflict of laws principles. In the event the parties are unable to mediate their dispute to a satisfactory resolution, the parties agree to the exclusive personal and subject matter jurisdiction and venue of the courts located in Lamar County, Texas or the United States District Court for the Eastern District of Texas for any claim or action under the Agreement. 14.3 Export Control. Both SpearTip and Client agree to comply fully with all relevant export laws and regulations of the United States to ensure that no information or technical data provided pursuant to the Agreement is exported or re-exported directly or indirectly in violation of law. 14.4 Limitation of Actions. No proceeding, regardless of form, arising out of or related to the Agreement may be brought by either party more than two years after the accrual of the cause of action, except that proceedings related to violation of a party's proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and proceedings for non- payment may be brought up to four years after the date the unpaid payment was due. 14.5 Attorneys' Fees. In the event of any litigation between the parties with respect to this Agreement, the prevailing party (the party entitled to recover costs of suit, at such time as all appeal rights have expired or the time for taking such appeals has expired) will be entitled to recover reasonable attorneys' fees, including fees incurred at the appellate level, in addition to such other relief as a court of competent jurisdiction may award. 15. LIMITATION OF LIABILITY AND REMEDIES 15.1 Limitations. IF CLIENT SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM SPEARTIP (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT CLAIM), SPEARTIP WILL BE LIABLE ONLY FOR THE AMOUNT OF SPEARTIP'S INSURANCE COVERAGE AS SET FORTH IN SECTION 11 HERE IN ABOVE. 15.2 No Liability for Certain Damages. IN NO EVENT WILL EITHER PARTY OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICES OR OTHER MATERIALS PROVIDED UNDER THE AGREEMENT BE LIABLE FOR: (1) ANY DAMAGES CAUSED BY THE FAILURE OF THE OTHER PARTY OR THE OTHER PARTY'S SUPPLIERS TO PERFORM THEIR RESPONSIBILITIES; (2) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 13); OR (3) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE HELD RESPONSIBLE, OR TO HAVE FAILED TO MEET ITS OBLIGATIONS UNDER THE AGREEMENT, IF IT EITHER DELAYS PERFORMANCE OR FAILS TO PERFORM AS A RESULT OF ANY CAUSE BEYOND ITS REASONABLE CONTROL. 15.3 Exclusions from Limitation; Survival. The foregoing limitations do not apply to the payment of settlements, costs, damages and legal fees under Section 13 (Indemnification) or for breach of confidentiality under Section 10. The limitations of liability set forth in this Section 16 will survive and apply notwithstanding the failure of any limited or exclusive remedy, any breach of the Agreement, or any other reason. The parties agree that the foregoing limitations will not be deemed to limit any liability to an extent that would not be permitted under applicable law. 16. GENERAL 16.1 Notices. All notices required to be given under this Agreement must be given in writing. Either party may change its address for notice under this Agreement by giving advance written notice to MSA 2020 7 Confidential and Proprietary MSA 2020 - for use in North America the other party as provided herein. Such notices will be deemed to have been given: (a) when delivered in person; (b) five (5) business days after being sent by certified mail, return receipt requested, postage pre- paid; (c) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified herein; or (d) upon delivery by reputable overnight courier, all delivery charges pre -paid, and addressed as follow 16.2 Reasonable Behavior. Each party will act in good faith in the performance of its respective responsibilities under the Agreement and will not unreasonably delay, condition or withhold the giving of any consent, decision or approval that is either requested or reasonably required by the other party in order to perform its responsibilities under the Agreement. 16.3 Assignment. Neither party may assign or otherwise transfer the Agreement or any of the rights that they grant without the prior written consent of the other party. Any purported assignment in violation of the preceding sentence will be void and of no effect. The Agreement will be binding upon the parties' respective successors and permitted assigns. 16.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction will be ineffective only to the extent of such invalidity or unenforceability and only as to such jurisdiction without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of these terms or provisions in any other jurisdiction. Additionally, if any provision of the Agreement is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties. 16.5 Order of Precedence. In the event of any conflict between or among the provisions contained in the Agreement, the following order of precedence will govern: (a) this Agreement, exclusive of its exhibits; (b) exhibits to this Agreement; and (c) a SOW/Proposal (except as to terms specifically identified in a particular SOW/Proposal as modifying or amending terms of this Agreement, which terms will control over the Agreement for that SOW/Proposal only). 16.6 Publicity. Both parties agree that neither party will issue any press release or make any other public statement about the other party, the Agreement or the Services without the other party's prior written consent. Notwithstanding the preceding, SpearTip may include Client's name on SpearTip's Client list/website and may describe briefly, and in general terms, the nature of the work performed by SpearTip for Client. 16.7 No Waiver. No failure or delay by either party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. The waiver by either party of a breach or a default of any provision of this Agreement by the other party will not be construed as a waiver of any succeeding breach of the same or any other provision. 16.8 Non -Solicitation. During the Term of this Agreement and for twelve (12) months after later of the expiration or termination of this Agreement or the SOW/Proposal, neither party will solicit for MSA 2020 8 Confidential and Proprietary In the case of Client: with a copy to the following, which will not constitute notice: Attn: Attn: Fax: Fax: In the case of SpearTip: with a copy to the following, which will not constitute notice: SpearTip, LLC Ben Auton 1714 Deer Tracks Trail, Suite 150 Director of Managed Detection & Response Saint Louis, MO 631 31-1 847 SpearTip, LLC Attn: Legal Department 1714 Deer Tracks Trail, Suite 150 1,112,...,,.uil:p Saint Louis, MO 63131-1847Email: 16.2 Reasonable Behavior. Each party will act in good faith in the performance of its respective responsibilities under the Agreement and will not unreasonably delay, condition or withhold the giving of any consent, decision or approval that is either requested or reasonably required by the other party in order to perform its responsibilities under the Agreement. 16.3 Assignment. Neither party may assign or otherwise transfer the Agreement or any of the rights that they grant without the prior written consent of the other party. Any purported assignment in violation of the preceding sentence will be void and of no effect. The Agreement will be binding upon the parties' respective successors and permitted assigns. 16.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction will be ineffective only to the extent of such invalidity or unenforceability and only as to such jurisdiction without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of these terms or provisions in any other jurisdiction. Additionally, if any provision of the Agreement is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties. 16.5 Order of Precedence. In the event of any conflict between or among the provisions contained in the Agreement, the following order of precedence will govern: (a) this Agreement, exclusive of its exhibits; (b) exhibits to this Agreement; and (c) a SOW/Proposal (except as to terms specifically identified in a particular SOW/Proposal as modifying or amending terms of this Agreement, which terms will control over the Agreement for that SOW/Proposal only). 16.6 Publicity. Both parties agree that neither party will issue any press release or make any other public statement about the other party, the Agreement or the Services without the other party's prior written consent. Notwithstanding the preceding, SpearTip may include Client's name on SpearTip's Client list/website and may describe briefly, and in general terms, the nature of the work performed by SpearTip for Client. 16.7 No Waiver. No failure or delay by either party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. The waiver by either party of a breach or a default of any provision of this Agreement by the other party will not be construed as a waiver of any succeeding breach of the same or any other provision. 16.8 Non -Solicitation. During the Term of this Agreement and for twelve (12) months after later of the expiration or termination of this Agreement or the SOW/Proposal, neither party will solicit for MSA 2020 8 Confidential and Proprietary MSA 2020 - for use in North America employment by itself any contracted employee or subcontractor of the other party who was involved in the performance of the party's obligations under the applicable SOW/Proposal, unless the hiring party obtains the written consent of the other party. The actual damages attributable to a breach of the provisions of this section would be difficult to determine and prove. Accordingly, the parties agree that if either party breaches this section, the breaching party will promptly pay the non -breaching party liquidated damages in an amount equal to the contracted employee's or subcontractor's annual salary (including bonuses and incentive compensation) prior to the breach, such sum being a reasonable measure of the damages reasonably anticipated by the parties. 16.9 Remedies. Unless a remedy is specifically designated as exclusive, no remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder, now or hereafter existing under the law. The election of any one or more remedies by either party will not constitute a waiver of the right to pursue other available remedies. 16.10 Survival. Unless and to the extent otherwise specified herein, all terms of this Agreement which by their nature extend beyond its termination, remain in effect until fulfilled, and apply to respective successors and assigns. 16.11 Counterparts and Facsimile Signatures. This Agreement may be executed in multiple counterparts and via facsimile, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument. Execution of this Agreement by electronic or facsimile transmission shall be accepted by the parties as if an original had been delivered. 16.12 Entire Agreement and Amendment. This Agreement, together with all exhibits, schedules and attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior agreements with respect to the subject matter hereof except for any prior confidentiality agreements between the parties. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing, provided however that the terms and conditions of Sections 7 through 17 may not be amended except by a document signed by an authorized principal of both parties. Each SOW/Proposal issued under this Agreement will incorporate the terms and conditions of this Agreement and will constitute a separate contract between the parties. A SOW/Proposal may amend the terms and conditions of this Agreement as they apply to that particular SOW/Proposal, but only if the SOW/Proposal expressly identifies the section(s) that are being amended. 16.13 Force Majeure. SpearTip shall not be liable or deemed to be in default for any delay or failure in performance of the Services hereto to the extent such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, labor disruption, regulatory or legislative intervention or other similar causes beyond its control and anticipation or foreseeability. In any such event, SpearTip will be excused from the performance of such obligation affected by such event for so long as such circumstances prevail, provided that SpearTip uses and continues to use commercially reasonable efforts to utilize alternative resources to recommence and/or maintain performance without further delay Each party has caused its authorized representative to execute this Agreement as of the Effective Date. SpearTip, LLC The City of Paris Signature Signature Name: Name: Grayson Path Title: _ Title:City anager - Date: Date: MSA 2020 _ 9 Confidential and Proprietary