FY2020-05 Service Agreement between Safety Skills LLC and KIB,11 5aretySKIIIs �vaU-bs
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Service Agreement Between Safety5kills, LLC and Kodiak Island Borough
The following Is a Subscription Service Agreement [No. 13579.19] ('The Agreement"), made as of lune 13, 2019, between Safety5kills, LLC, a
Delaware Corporation ("SafetySkills") and Kodiak Island Borough ("Customer').
RECITALS
A. SafetySkills is a company focused on providing world-class, technology-based solutions to global compliance training challenges.
B. Customer desires to obtain from SafetySkills those services as further specified herein, according to the terms and conditions of this
Agreement.
C. Wherefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
License. By this Agreement, Safety5kilis grants to Customer a limited, non-exclusive, non-sublicensable, nontransferable license to use the
Courses during the Term on the terms and conditions outlined In this Agreement. Customer shall have the right to access the Courses with the
number of authorized learners as set forth In Section 3 below. Any features for which Customer has not paid a subscription fee or any other
unenabled features of the Courses are unlicensed to Customer and Customer agrees not to use or access such features. Customers access to
the Courses shall be limited to access to the software through web -based viewing and management portals. Nothing herein shall be
construed as granting Customer access to any source code of the Courses. Customer agrees that its use of the Courses Is subject to the
applicable service level agreement of SafetySkills, as amended from time to time. Upon request by Customer, SafetySkills shall provide a copy
of the applicable service level agreement to Customer.
2. Term. The term (the "Term") of this Agreement shall remain in force for 12 Months and shall commence upon date of signature unless
otherwise noted. Upon expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration
to the Initial Term (or one year, if the Initial Term Is greater than one year), unless either Party provides written notice to the other Parry of its
Intent not to renew at least thirty (30) days prior to expiration of the Initial Term or any then current Renewal Term. The quantity and pricing
of Services under the renewal will be equal to the current number of total seats at time of renewal. You may subscribe to services and
quantities in addition to those listed In this contract. Such additional services and quantities will be added to the terms of this Agreement on
the first day of the billing period following the date of their purchase and shall remain part of this Agreement for the remaining duration of the
then current term, unless you remove the additions before the end of the billing period In which they were purchased.
3. Licensed Courses. The Courses set forth below are hereby licensed under this Agreement to Customer. Pursuant to this Agreement,
Customers license for the Courses shall be for no more than 50 users (the "Learners"). Any additional fees will be assessed for the full month
beginning the month In which they are added.
Premium Support Package
The Premium Success Package connects you with the resources
to achieve and expand success with your Safety5kills
deployment. When you need help, the Premium Support
Package gives you fast access to our most skilled technical
resources. Get support with rapid response times to help you
resolve your Issues quickly. Whether you have "how-to"
questions or technical Issues, we give you fast, expert answers.
$3.00 67% 51.00 5o $50.00
SafetySkills Enterprise LMS Subscription
Annual Subscription to Safety5kills EnterprisePro Learning $1,200.00 0%
Management System.
Kodiakislandaarcugh•EntPfa19.50, lune 13.2019
Yar
FY2020-05 SafetySkill - .
$1,200.00 1 51,200.00
SafetySkllLs EnterprtsePro Seats 00001-100 q I
Learners on Safety5kills'" EnterprtsePro (0001-0300) $36.00 53% $17.00 So $850.00
$2,100.00
System access shall begin on the Launch date. Fees relating to system access assume no more than 50 Customer employees are accessing the
System at any time.
4. Content from SafetySkills Library
S. System Requirements. The system requirements (the "System Requirements") required for adequate functioning of the Courses can be found
at: httos://helo.safetvskills.com/all-articles/minimum-and-recommended-technical-reavirements/. SafetySkllls reserves the right to make
changes to the System Requirements from time to time with reasonable advance notice to Customer when possible. Customer assumes all
responsibilities for network or system configuration changes that adversely affect use of the Courses.
6. Fees and Payment. Upon execution of this Agreement, Customer will be Invoiced in USD by SafetySkllls. Payment of fees (the "Fees") by
Customer shall be made In USD upon Customer's receipt of SafetySkllls Invoice.
Kodiak Island Borough
Attn:
SafetySkills shall not Invoice for or pay any applicable taxes. Customer shall be responsible for payment of all tariffs and taxes that are
now or may become applicable to the licensing of the Courses hereunder. However, nothing herein shall be construed as requiring
Customer to be responsible for any income of 5afety5kllls.
7. Customer -Owned Property an Safety5kills' Learning Management System. During the Term of this Agreement, Customer shall have the right,
subject to the limitations herein, to upload Customer's content to SafetySkllls' Learning Management System. Upon expiration or termination
of the Term, Customer acknowledges and agrees that It will no longer have access to the Learning Management System and thus access to Its
uploaded content. At any time, Safety5kills has the right to review, approve and remove such Customer -uploaded content at SafetySkills' sole
discretion. Customer agrees that It will not upload any content that Is (i) harmful to Safety5kills' Learning Management System, (II) not owned
or licensed by Customer, (ill) illegal, lewd or otherwise offensive material that might reflect poorly upon Safety5kills, (Iv) competitive to
SafetySkills, (vj for any illegal purpose or In violation of any local, state, national, or International laws, or (vi) violating or encouraging others
to violate any right of or obligation to a third party, including by Infringing, misappropriating, or violating Intellectual property, confidentiality,
or privacy rights. For the avoidance of doubt, Customer's ability to upload its content to Safety5kills' Learning Management System Is a right
that can he terminated at any time by Safety5kills in Its sole discretion.
B. Termination.
a. Termination for Cause. Either party may terminate this Agreement upon breach by the other party of any one or more of the
material terms and conditions of this Agreement, provided the party in breach Is notified in writing by the other party of the
breach and the breach is not cured or measures have not been taken to cure the breach within thirty (30) days of such written
notification.
b. Termination by SafetySkills. Notwithstanding anything In Section 8(a), Safety5kills may terminate this Agreement immediately,
without notice, If Customer breaches its payment obligations or confidentiality obligations under this Agreement.
c. Insolvency, Bankruptcy. Either party may terminate this Agreement Immediately if the other party: (A) becomes insolvent or
xod+akhlandeorough-EntPro19.50, lune 13,1019
Page 2 of 5
Upon Execution
$2,100.00
SafetySkills shall not Invoice for or pay any applicable taxes. Customer shall be responsible for payment of all tariffs and taxes that are
now or may become applicable to the licensing of the Courses hereunder. However, nothing herein shall be construed as requiring
Customer to be responsible for any income of 5afety5kllls.
7. Customer -Owned Property an Safety5kills' Learning Management System. During the Term of this Agreement, Customer shall have the right,
subject to the limitations herein, to upload Customer's content to SafetySkllls' Learning Management System. Upon expiration or termination
of the Term, Customer acknowledges and agrees that It will no longer have access to the Learning Management System and thus access to Its
uploaded content. At any time, Safety5kills has the right to review, approve and remove such Customer -uploaded content at SafetySkills' sole
discretion. Customer agrees that It will not upload any content that Is (i) harmful to Safety5kills' Learning Management System, (II) not owned
or licensed by Customer, (ill) illegal, lewd or otherwise offensive material that might reflect poorly upon Safety5kills, (Iv) competitive to
SafetySkills, (vj for any illegal purpose or In violation of any local, state, national, or International laws, or (vi) violating or encouraging others
to violate any right of or obligation to a third party, including by Infringing, misappropriating, or violating Intellectual property, confidentiality,
or privacy rights. For the avoidance of doubt, Customer's ability to upload its content to Safety5kills' Learning Management System Is a right
that can he terminated at any time by Safety5kills in Its sole discretion.
B. Termination.
a. Termination for Cause. Either party may terminate this Agreement upon breach by the other party of any one or more of the
material terms and conditions of this Agreement, provided the party in breach Is notified in writing by the other party of the
breach and the breach is not cured or measures have not been taken to cure the breach within thirty (30) days of such written
notification.
b. Termination by SafetySkills. Notwithstanding anything In Section 8(a), Safety5kills may terminate this Agreement immediately,
without notice, If Customer breaches its payment obligations or confidentiality obligations under this Agreement.
c. Insolvency, Bankruptcy. Either party may terminate this Agreement Immediately if the other party: (A) becomes insolvent or
xod+akhlandeorough-EntPro19.50, lune 13,1019
Page 2 of 5
unable to pay Its debts as they mature within the meaning of the United States Bankruptcy Code or any successor statute; or (B)
makes an assignment for the benefit of Its creditors; (C) files or has filed against it, voluntarily or Involuntarily, a petition under
the United States Bankruptcy Code or any successor statute unless such petition Is stayed or discharged within ninety (901 days;
or (D) has a receiver appointed with respect to all or substantially all of its assets.
d. Termination by Customer. Customer may terminate this Agreement by providing SafetySkllls with thirty (30) days advance
written notice of its Intent to terminate and by paying the unpaid balance of the amounts owed during the remainder of the
Term (the "Buyout Amount"). The parties recognize and agree the Buyout Amount shall not be construed as a penalty for
termination, but rather fair compensation to SafetySkills for expenses Incurred.
e. Effect of Termination. Upon termination of this Agreement under this Section 8, Customer shall have no further rights or
Interest In or to the Courses, and Customer shall (1) Immediately stop using the Courses and (2) uninstall or delete any Course
content or version of the Courses located on Customer's equipment. Upon termination, Safety5kills reserves the right to
require Customer to provide satisfactory proof that all copies of the content and Courses have been uninstalled. Any
termination of this Agreement shall not waive any rights of Safety5kills that have accrued during the term of this Agreement,
Including, but not limited to, the right to receive moneys owed to Safety5kills under this Agreement.
9. Indemnification. Customer shall Indemnify, defend and hold harmless Safety5kills from and against any loss, liability, cost, expense or claim,
including reasonable legal fees, asserted by third parties for damage to real or tangible personal property, or for bodily injury, or both, to the
extent such damage or injury is attributable to the negligence or misconduct of Customer or any breach by Customer of Its obligations under
this Agreement. 5afety5klils shall give Customer prompt notice of any such claim and all necessary information and assistance so that
Customer, at its option, may defend or settle such claim.
10. Confidentiality. The parties shall not disclose to employees without a need to know or to any third parties, information received from the
other party which has been Identified as proprietary or confidential, or which by the nature of the circumstances surrounding disclosure,
should In good faith be understood to be proprietary or confidential, Including, without limitation, information regarding the other party's
business, pricing, know-how, technical Information and development techniques, business and financial Information, customer lists,
documentation, manuals, or other printed material (collectively, "Confidential Information"). Confidential Information shall not include any
Information which (i) was in the public domain prior to disclosure, (11) comes Into the public domain through no act or omission of the
receiving party, or (1111 Is disclosed to a party without restriction by a third party who has a legal right to make such disclosure. The
confidentiality obligations of the parties shall survive termination of this Agreement. Notwithstanding the foregoing, Customer agrees to
allow Safety5kills to use Customers name and logo for the purposes of demonstrating Safety5kills project history and for other marketing
purposes; provided, however, that Customer retains all rights of ownership of such name and logo.
11. Ownership of Courses; Permitted Use of the Content of the Courses. The Courses and/or any other computer software In object code or
source code, script, programming code, data, HTML script, articles, images, Illustrations, designs, Icons, photographs, video clips, audio clips or
other Information or ideas developed under this Agreement, or provided by Safety5kills , or otherwise arising In connection with this
Agreement, shall be Safety5kills exclusive property, Including, without limitation, all copyrights, trademarks, patents, trade secrets and any
other proprietary rights. Customer shall provide reasonable assistance to Safety5kills in securing and protecting Its Interests associated with
the Courses or other proprietary rights, Including executing documents as necessary to secure such rights. Customer shall not (and shall not
allow any third party to) modify, copy, duplicate, reproduce, create derivative work from, reverse engineer, reverse assemble or otherwise
attempt to discover any source code In, sell, assign, license or sublicense the Courses, or transfer or convey the Courses or any right in the
Courses to anyone else without the prior written consent of Safety5kills. Any other use, Including the reproduction, modification, distribution,
transmission, republication, display, or performance, of the Courses or any content therein is strictly prohibited. The Courses are being
licensed, not sold, to Customer. Safety5kills shall at all times retain title to and ownership of the Courses and all other rights and Interest,
Including without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the
Courses. Customer is granted only limited rights with respect to the Courses as set forth In this Agreement, and Customer has no other rights,
express, implied, or otherwise. All source code and content within the Courses Is the property of SafetySkills or Its partners and is protected by
U.S. and International copyright laws, and Customer acknowledges such. Customer shall not (and shall not allow any third party to) publish,
transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit In any way, in whole or In part,
any of the source code, Courses, or any content therein. The Courses contains valuable trade secrets of Safety5kills, and Customer shall keep
any and all such trade secrets confidential. The parties do not anticipate that anyjointly created or developed Intellectual property rights will
arise as a result of the relationship between the parties. However, as the parties may discuss customizations, modifications, or enhancements
for Courses, the possibility ofjointly created or developed intellectual property rights cannot be entirely ruled out. Consequently, the parties
hereby allocate ownership of any and all jointly created or developed intellectual property rights solely to Safety5kills, even In the event that
SafetySkllls and Customer enter Into an agreement for the customization, modification, or enhancement of the Courses.
12. Review and Approval of Courses. Customer represents and warrants to Safety5kills that It shall review and approve each Course licensed
pursuant to this Agreement prior to allowing Customers employees or other third parties access to such Courses.
13. Limited Warranty and Disclaimer.
Kodlaklslandgorough EntPrc19-S0, lune 13,1019 Page 3 of 5
a. Services. SafetySkills represents and warrants that it has the right to license all of the Courses to Customer and that such
Courses will substantially comply with their description provided that the System Requirements are met. The foregoing sets
forth the exclusive remedies against SafetySkills for claims based an a defect in services, parts or materials.
B. Disclaimer of Warrantles. Except as provided in this section, SafetySkills makes no warranty, whether written, oral, statutory,
express or Implied, as to any matter whatsoever with respect to the courses furnished under this Agreement. All other
warranties are expressly disclaimed by Safety5kills, Including, but not limited to, any Implied warranty of merchantability,
fitness for a particular purpose or non -Infringement. Some jurisdictions do not permit the exclusion of implied warranties, In
which case the exclusion of Implied warranties may not apply. All services, technology, courses or other deliverables are
supplied on an "as available" basis; provided, however, SafetySkills will use its commercially reasonable best efforts to ensure
that the services are supplied during customer's business hours. The content of the courses provided herein only comply with
the laws of the United States of America (Including the respective regulatory agencies rules and requirements).
c. Remedies. If for any reason customers sole remedies fall of their essential purposes, Safety5kills liability under this Agreement
for errors or defects in the courses or SafetySkills gross negligence, whether In contract or tort, law or equity, is limited to an
amount In the aggregate paid by customer to SafetySkills over the term of this Agreement. Customer hereby does assume and
shall be responsible for any additional liabilities or damages In excess of such amount.
d. Limitation on Liability. Even If customers exclusive remedies fail of their essential purposes or are found not to constitute
minimum adequate remedies, Safety5kills shall never be liable for any Indirect, special or consequential damages Including, but
not limited to, economic loss or loss of anticipated profits or payments to third parties or for any claim asserted by any third
party in connection with or arising out of the courses provided for In this Agreement, whether In contract or tort (Including
SafetySkills gross negligence), law or equity, even if Safety5kills has been advised of the possibility of such damages.
e. Course Content. The content contained In the Courses has been prepared by Safety5kills as a service. It Is provided only for
general Information and Is not Intended to address Customers particular requirements or to constitute any form of advice or
recommendation (including legal advice). SafetySkills has used reasonable efforts In collecting, preparing and providing quality
Information and material, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the
Information contained on or linked to the Courses. Learners of the Courses do so at their own risk and acknowledge that this
Information should not be relied upon In making (or refraining from making) any specific decision.
14. Notices. Any notice under this Agreement shall be In writing, addressed to the applicable party as set forth below (or such other address of
which the other party Is notified), and shall be effective upon receipt via certified United States or International mall or nationally recognized
courier.
Customer Contact:
Meagan Christiansen
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK, 99615-6398
(907) 485-9303
Safety5kills Contact:
Chief Financial Off lcer
Safety5kills, LLC
519 NW 23'd Street, Suite 200
Oklahoma City, OK 73103
(405) 463-6656
15. Miscellaneous.
a. Assigns; Reasonable Control. This Agreement shall be binding upon and Inure to the benefit of the parties hereto and their
respective successors, legal representatives, and assigns. However, Customer may not assign, delegate or otherwise transfer
rights, duties or obligations under this Agreement without the prior written consent of Safety5kills. SafetySkills shall have the
right to freely assign Its rights, duties and obligations under this Agreement. SafetySkills shall not be responsible for delays or
failures to perform which are due to causes beyond Its reasonable control.
b. Force Majeure. Except for failure to make payments when due, neither party hereto will be liable to the other by reason of any
failure In performances of this Agreement If the failure arises out of the unavailability of third -party communication facilities or
energy sources, acts of God, acts of the other party hereto, acts of governmental authority, fires, strikes, delays in
transportation, riots, terrorist threats or attacks, or war, or any cause beyond the reasonable control of that party.
c. Governing Law; Arbitration. This Agreement shall be governed by and construed according to the laws of the State of
Oklahoma (without regard to conflict of law principles). All claims and disputes arising under or relating to this Agreement are
to be settled by binding arbitration In Oklahoma City, Oklahoma or another location mutually agreeable to the parties. The
arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Any decision or award as a result of any such arbitration proceeding shall be In writing and shall provide an
explanation for all conclusions of law and fact and shall Include the assessment of costs, expenses, and reasonable attorneys'
fees. Any such arbitration shall be conducted by an arbitrator experienced In the software industry. The parties reserve the
right to object to any Individual who shall be employed by or affiliated with a competing organization or entity. An award of
arbitration may be confirmed in a court of competent jurisdiction.
KadlaklsiandScrough-EntProl9-SO, lune 13,1019 Page 4 of 5
d. Independent Contractor Status. The parties are entering into this Agreement as independent contractors and neither has the
authority to bind the other to any third party or otherwise to act in any way as the representative of the other. In particular, it
Is understood and agreed that neither party nor any employee or agent of such party Is eligible to participate In or to exercise
rights under any of the other party's profit sharing, group Insurance, major medical or any other compensation or benefit plans.
e. Severability; Entire Agreement. If any provision of this Agreement is deemed, by a court of competent jurisdiction, to be
invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain
In full force and effect. This Agreement, and any Work Orders (Including attachments thereto) constitute, in each case, the
entire agreement between the parties with respect to the subject matter thereof, and supersedes all prior agreements,
negotiations, requests for proposals or proposals or similar documents and any understandings with respect thereto, both
written and oral.
f. Modifications; Counterparts; Other Terms. All changes to this Agreement must be in writing and executed by authorized
representatives of both parties. This Agreement may be executed by the parties in multiple counterparts, each of which
counterpart shall be deemed an original of equal force and effect. The terms and conditions of this Agreement shall prevail
over any purchase order or other document or statement Customer provides with terms and conditions that vary from this
Agreement.
g. Acceptance of Agreement. This Agreement for services Is for immediate acceptance and is valid for thirty (30) days from the
date of Agreement.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement No. (13579-19) as of the date
indicated below.
By:
Name:
Title:
Z �a"
Gary D. Cook
Chief Financial Officer
By: 142-1�
Name: Michael Powers
Title: Manager
Date: 6=18-19 Date: June 14, 2019
Requested Start Date:
July 1. 2019
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