Syvantis Services and Use Agreement

1 Background

1.1 Parties:

(a) Syvantis Technologies, Inc. a company incorporated in Minnesota having its registered office at 13822 Bluestem Ct., Baxter, Minnesota 56425 (the “Service Provider”); and
(b) The “Client,” a company with a Master Services Agreement in effect with the Service Provider.

1.2 The Service Provider has expertise in the provision of hosting and support Services, and the Client wishes the Service Provider to supply the Services to the Client; the parties have agreed that it will do so under the terms of this Agreement in conjunction with the Master Services Agreement executed between the parties.
 
1.3 This Service and Use Agreement was originally created on January 1, 2014 and last revised on October 4, 2017.

 

2 Definitions and interpretation

2.1 In this Agreement:
 
Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company, firm or individual;
 
Agreement” means this agreement (including Master Services Agreement) and any amendments to either this agreement or the Master Services Agreement;
 
Application” means any software that is supported or hosted by Service Provider;
 
Business Day” means any week day, other than a bank or public holiday in the United States.
 
Business Hours” means between 8:00 a.m. and 5:00 p.m. Central Time on a Business Day;
 
Charges” means the amounts payable by the Client to the Service Provider under or in relation to this Agreement (as set out in the Master Services Agreement);
 
Confidential Information” means any information disclosed (whether disclosed in writing, orally or otherwise) by one party to the other party that is marked as “confidential”, described as “confidential” or should have been understood at the time of disclosure to be confidential;
 
Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
 
Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
 
Hosting Partner” means any company (or affiliates of such company) that provides hosting services on behalf of the Service Provider.
 
Hosting Services” means the services detailed in Section [5];
 
Hourly Rate” means the Service Provider’s standard hourly labor rate, which may vary from time to time;
 
Effective Date” means the date specified as such in the Master Services Agreement;
 
Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, knowhow, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
 
Personal Data” means data relating to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller;
 
Prohibited Content” means material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against the Service Provider or the Client or any third party; pornographic or lewd material; and messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;
 
Support Services” means the services detailed in Section [4];
 
Term” means the term of the Master Services Agreement as defined in Section [3];

 

3 Term

3.1 This Agreement (including any subsequent amendments and/or changes) will come into force on the Effective Date of the Master Services Agreement and will continue until terminated in accordance with the termination of the Master Services Agreement.

 

4 Support Services

4.1 The Service Provider will make available, on Business Days and within Business Hours, a telephone and email helpdesk facility for the purpose of providing support to the Client (and the Service Provider's other Clients).  The Service Provider will use reasonable endeavours to respond to requests for support within the response times designated in Addendum A.

 

5 Hosting Services

5.1 Hosting Services include the provision of application hosting in either Microsoft’s Azure global data centers or within Syvantis Technologies’ local data center, as applicable.
 
5.2 Services included in Syvantis GP Online are specified in Addendum A.
 
5.3 Within [5] Business Days following the Effective Date (or, if later, the actual date of implementation), Client will comprehensively test the functionality of all installed applications and will inform the Service Provider of the results of those tests.
 
5.4 The Service Provider or its Hosting Partner may suspend some or all of the Services in order to carry out scheduled maintenance or repairs.  Subject to this, the Service Provider will use its best endeavours to maintain the application availability level specified in Addendum A.
 
5.5 If the Hosting Services are provided in a dedicated hosted environment:  Upon request, the Service Provider may make available to the Client the ability to perform certain setup and administrative procedures on the dedicated servers.
 
5.6 If the Hosting Services are provided in a multi-tenant hosted environment:  Certain procedures are not available in a multitenant hosted environment and must be performed by Service Provider personnel.  These procedures include (but are not limited to):

(a) Set up of new users;
(b) Use of the sa or DYNSA accounts in Dynamics GP;
(c) Access to the SQL database(s) via SQL management tools or SQL query tools;
(d) Ability to update Dynamics GP, Dynamics GP third party modules, or any other applications; and
(e) Local server administration rights.

5.7 The Client must not use hosted servers:

(a) To host, store, send, relay or process any Prohibited Content;
(b) For any purpose which is unlawful, fraudulent, or infringes any third party rights;
(c) In any way which may put the Service Provider in breach of a contractual or other obligation owed by the Service Provider to any internet service provider.

5.8 The Service Provider reserves the right to remove content from the hosted servers where it reasonably suspects such content is Prohibited Content.

5.9 The Client acknowledges that the Service Provider does not purport to monitor the content of the Website or the use of the Services. Where the Service Provider reasonably suspects that there has been a breach of the provisions of this Section, the Service Provider may suspend any or all of the Services and/or the Client’s access to any or all Services while it investigates the matter. Any breach by the Client of this Section will be deemed to be a material breach of this Agreement.  The Client will indemnify the Service Provider and undertakes to keep the Service Provider indemnified against all liabilities, damages, losses, costs and expenses arising as a result of any breach by the Client of this Section.
 
5.10 The hosted servers will be protected by anti-spam and anti-virus software.  If the Client exceeds the relevant storage limit (as identified in Addendum A), Client will be charged additionally as per Addendum A.

 

6 Client Responsibilities

6.1 The Client will provide to, or procure for, the Service Provider any:

(a) Support, advice, information and documentation;
(b) Full remote access to applicable servers to freely perform work and testing outside of normal business hours;
(c) Third party cooperation, such as software vendors and outside IT companies;
(d) Licenses and downloads of third party software; and
(e) Governmental, legal or regulatory licences, consents or permits which are necessary to enable the Service Provider to discharge its obligations under this Agreement.

6.2 The Services are provided to the Client only, and the Client may not resell the Services to any third party.
 
6.3 It is the Client’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis.  The Client will notify the Service Provider immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.

 

7 Service Provider Responsibilities

7.1 Service Provider responsibilities and/or requirements in support of this Agreement include:

a) Meeting response times associated with service related incidents.
b) Appropriate notification to Customer for all scheduled maintenance.

 

8 Charges and payment

8.1 The Service Provider will issue monthly recurring invoices on the first day of each calendar month during the term.  The Service Provider will issue annual recurring invoices on the first day of the Agreement and every year thereafter.  Client will pay recurring invoices by direct bank debit or credit card (subject to handling fee) on the first day of each calendar month during the term.
 
8.2 The Service Provider will issue non-recurring invoices on a semi-monthly basis for service provided during the applicable semi-monthly period.  Client will pay non-recurring invoices by direct bank debit or credit card (subject to handling fee), or on account with prior credit approval on or before the 10th business day following the semi-monthly period, with 1.5% interest per month to be accrued on amounts 30 days from the invoice date.   
 
8.3 Any supplemental services provided by Service Provider which are outside the terms of this Agreement, including but not limited to, services provided beyond Business Hours, training, documentation, or other services, shall be charged as an additional charge.  Any additional charges will be invoiced semi-monthly and paid by bank debit upon invoice.  
 
8.4 If Client specifically requests that billable work be performed outside of normal working hours, that work will be charged at an additional after-hours rate of 40% more than the normal working hours rate.  If the requested work would normally be included in an otherwise non-billable service (such as Support Incidents or upgrades), Client will be charged a hourly rate of 40% of the standard hourly billing rate.
 
8.5 If there are increases or decreases to the number, or changes to the number of users, applications, or other covered items, Charges will be adjusted according to the pricing in the Master Services Agreement, and any changes to charges will commence the following month. The Client must notify Syvantis Technologies in writing of user or device deductions no later than the 25th of the month prior to the change or Client will be billed for the following month.
 
8.6 All Charges stated in or in relation to this Agreement are stated exclusive of sales tax, VAT, or GST unless the specifically indicated otherwise.  Client is responsible for paying all applicable sales tax, VAT, or GST.
 
8.7 Charges must be paid by direct bank debit, bank transfer, credit card, or check, using such payment details as are notified by the Service Provider to the Client from time to time.  
 
8.8 If the Client does not pay any amount properly due to the Service Provider under or in connection with this Agreement, the Service Provider may charge the Client interest on the overdue amount at the rate of 18% per year, which interest will accrue and be compounded monthly until the date of actual payment, and be payable on demand. Further, Service Provider reserves the right to refuse or suspend service under this Agreement in the event that Client has failed to pay any invoice within 30 days of invoice date, whether it be an invoice for services provided under this Agreement or any other invoice.
 
8.9 The Service Provider may elect to vary the Hourly Rate as per its normal billing rates procedures.  Client shall be notified in advance of any hourly rate changes.

 

9 Warranties

9.1 The Client warrants to the Service Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
 
9.2 The Service Provider warrants to the Client:

(a) That it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) That it will perform its obligations under this Agreement with reasonable care and skill in accordance with commercially reasonable standards of practice in the industry.

 

10 Limitations and exclusions of liability

10.1 The limitations and exclusions of liability govern all liabilities arising under the Agreement, the Master Services Agreement, or in relation to the subject matter of the Agreement.
 
10.2 Service Provider will not be liable:

(a) In respect of any loss of profits, income, revenue, use, production or anticipated savings;
(b) For any loss of business, contracts or commercial opportunities;
(c) For any loss of or damage to goodwill or reputation;
(d) In respect of any loss or corruption of any data, database or software;
(e) In respect of any special, indirect or consequential loss or damage; or
(f) For any losses arising out of a Force Majeure Event.

10.3 The Service Provider's liability in relation to any event or series of related events will not exceed one times the monthly fee contained in the Master Services Agreement.

 

11 Data protection

 11.1 The Client warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Service Provider under this Agreement, and that the processing of that Personal Data by the Service Provider for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.

 

12 Confidentiality

12.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Section, using at least reasonable security measures.
 
12.2 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
 
12.3 These obligations of confidentiality will not apply to Confidential Information that:

(a) Has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) Is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) Is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority or regulatory body.

 

13 Termination

13.1 Either party may terminate this Agreement by giving advance written notice to the other party at least 60 days prior to the end of the Term.
 
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.
 
13.3 Either party has the right to terminate this Agreement immediately in the event that the other party has materially breached the Agreement and fails to cure such breach within thirty (30) days of receipt of notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Client may also terminate this Agreement immediately in its sole discretion in the event of Service Provider's material breach of the section titled "Intellectual Property Rights.”
 
13.4 Upon termination of the Agreement or upon Client's request at any other time, Service Provider will deliver to Client all of Client's property together with all copies thereof, and any other material containing or disclosing any Work Product, Third Party Information or Confidential Information.

 

14 Effects of termination

14.1 If Client cancels or significantly varies the Services Contract within the Agreement Term, the Client agrees to pay as liquidated damages to Service Provider an amount equal to all current and past due product purchases, labor, and orders, plus 50% of the remaining services fee over the term of the contract (calculated by totalling all Unbilled Contracted Monthly Fees without discounts and multiplying by 50%).  “Unbilled Contracted Monthly Fees” shall be determined by taking the greater of the monthly fees as of the month of termination or the monthly fees as of six months prior to the month of termination. Any fee which has already fallen due prior to the cancellation or change remains payable.
 
14.2 Upon Termination of this Agreement, the Service Provider will provide such assistance as is reasonably requested by the Client to transfer the hosting of the Applications and related data to the Client or another service provider, subject to payment of the Service Provider's reasonable expenses.


14.3 The Client will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Service Provider.

 

15 General

15.1 Any notice given under this Agreement must be in writing and must be delivered personally, or sent by mail, fax, or email, for the attention of the relevant person, and to the relevant address, fax number or email address as provided on the Master Services Agreement.  A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) Where the notice is delivered personally, at the time of delivery;
(b) Where the notice is sent by mail, 48 hours after postmark; and
(c) Where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

 15.2 If a Section of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Sections of this Agreement will continue in effect.  If any unlawful and/or unenforceable Section would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Section will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Section will be deemed to be deleted).  
 
15.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
 
15.4 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties. No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
 
15.5 The Service Provider may assign its rights and obligations under this Agreement without the Client’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party.
 
15.6 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party.  The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
 
15.7 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement.  Each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
 
15.8 This Agreement will be governed by and construed in accordance with the laws of the state of Minnesota; and the courts of Minnesota will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.


Addendum A:  Services Details

1 Syvantis GP Online

1.1 With Syvantis GP Online, Dynamics GP is installed in Microsoft’s Azure Cloud, and accessed remotely via the Dynamics GP Web App, Classic App, or Remote Desktop.
 
1.2 The following are not Support Incidents and are separately billed at standard billing rates:

(a) Implementation of new Dynamics GP features or modules;
(b) Implementation of new ISV features or modules;
(c) Training that is more than one hour in duration;
(d) Data integrations, migrations, or imports;
(e) Setting up a new company;
(f) Microsoft support requests;
(g) Account or Financial Statement reconciliations;
(h) Workstation, printer, or other device support;
(i) Creation of new SSRS Reports, Smartlist Reports, Management Reporter Reports, KPI’s, Word Templates, or other specialized reporting; and
(j) Special projects.

 1.3 All Dynamics GP Upgrades and Service Packs are included.  The Client will direct the timing of Upgrades and Service Packs, depending upon business needs and schedules.  Upgrades and service packs are dependent upon availability of other integrated applications and other technical factors, so the installation of upgrades and service packs may be delayed.  Upgrades may change system functionality and/or pricing due to Microsoft licensing changes. We may require an upgrade to a current version of Dynamics GP in a situation where the client’s version is no longer supported.
 
1.4 Access to GP Online can be obtained in three ways:

(a) Through the Dynamics GP Web App;
(b) Through the Classic App, which is delivered via Microsoft’s Remote App technology (additional charge); and
(c) Through Microsoft’s Remote Desktop (additional charge).

1.5 GP Online includes 5 live companies, 1 test company (with your company data), and up to 10 GB of Dynamics GP data storage.  Additional companies and storage can be obtained for an additional fee as published on the current website’s Apps page.
 
1.6 User adds, moves, and changes may be made through support requests to the Tech Help Desk.  The Client must notify Syvantis Technologies in writing of user or device deductions no later than the 25th of the month prior to the change or Client will be billed for the following month.
 
1.7 Our Subscription and Hosted Owned plans include unlimited Tech Help Desk.  Tech Help Desk includes user adds, moves, and changes as well as assistance accessing GP Online.  Workstation, printer, or other device support is not included in Tech Help Desk.  While we are happy to assist you with PC related issues, such services will be separately billed at our standard billing rates.
 
1.8 Dynamics GP application availability is governed by Microsoft’s Azure SLA, available on windowsazure.com.

 

2 GP OnPremise Services

2.1 With Syvantis GP OnPremise, Dynamics GP is installed on the Client’s local servers and maintained by the Client’s IT staff.
 
2.2 GP OnPremise Support includes 5 annual support incidents, upgrades, and service packs as outlined in Sections [1.2], [1.3], and [1.4] of Addendum A.  

 

3 Help Desk

3.1 The Tech Help Desk is staffed during Business Hours on Business Days, and can be reached by emailing our support desk or calling 800-450-8908.
 
3.2 Help Desk response times are governed by the severity of the technical issue.  Each support request is independently triaged for its business effects and assigned a severity Level as follows:

  • Business Critical: Entire system is down and no users are able to perform work. Service will begin in 1-2 business hours.
  • User Critical: One user is unable to access the system to perform their work. Service will begin in 1-4 business hours.
  • Priority: Users are unable to access certain non-primary functions in their system and there is no work around. Service will begin within 8 hours.
  • Standard: Users are unable to access certain non-primary functions, but there is a workaround. Standard is also used for all user adds and security changes, as well as other basic service requests. Service will begin within 1-2 business days or as scheduled.
 

4 Standard Billing Rates

4.1 Syvantis Standard Billing Rates are determined based upon the skill level of the Consultant, and are revised from time to time as business needs change.  


Addendum B:  Implementation

1 Fixed Price Implementations

1.1 Syvantis offers four fixed price implementation options:

(a) Financial Management;
(b) Inventory Management;
(c) Financial Management with Project Accounting; and
(d) Inventory Management with Project Accounting.  

1.2 The fixed price implementation options are suitable for most small businesses or divisions of large enterprises that do not have specialized reporting or customization needs.  Fixed Price Implementations generally include:

(a) Rapid Implementation Project Plan
(b) Accounting System Design Document
(c) Chart of Accounts Consulting
(d) Customer, Vendor, & Inventory numbering methodology
(e) Account, Customer, Vendor, and Items migration
(f) Open AR, AP, and Item Quantities transaction migration
(g) Standard P&L and Balance Sheet
(h) Customized training sessions
(i) Customized training materials
(j) Post go-live Support
(k) Assistance with first bank reconciliation
(l) Month-end procedures recommendations

1.3 Fixed Price Implementations do not include any additional consulting or services other than those specifically identified in Section [1.2].  Examples of non-included services include (but are not limited to):

(a) Import data manipulation
(b) Imports of historical data
(c) BOMs or Kitting
(d) More than one Bill To or Ship To Address per Customer or Vendor
(e) Consolidated Financial Statements
(f) Sales Order Processing
(g) Imports of Contracts, Projects, Cost Categories, or Fees
(h) Migration of open projects
(i) Importing of open Sales Orders or Purchase Orders
(j) Any services included in the Dynamics GP Apps offerings on the website.

1.4 Clients requiring any items not specifically included in Fixed Price Implementations may request customized pricing from a Syvantis Consultant.

 

2 Customized Implementations

2.1 Any implementation that is not a Fixed Price Implementation is treated as a Customized Implementation.  Syvantis Technologies performs numerous Customized Implementations, and a Syvantis Consultant can provide specific pricing.