Loading...
HomeMy WebLinkAboutP-22-093 Agreement HSI Inc. 8-8-22.pdf :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 Professional Services Agreement This Professional Services Agreement (the "Agreement") is dated ugu", 2022 and is between American Safety & Health Institute, Inc. (dba Health and Safety Institute, hereinafter "HSI"), and the County of Fresno, a political subdivision of the State of California ("Customer" or "County"). Recitals A. The County has a need for CPR and First Aid training for employees designated by their departments as first responders or safety representatives in their areas.The training would be for employees in all County departments and would include performing CPR on adults, children and first aid information. In addition, the County needs to have County employees trained to be trainers,which would allow for flexibility and availability of training for departments. B. HSI has shown to be qualified to provide the services needed as well as the flexibility desired. HIS's qualifications including the ability to provide training to the level of American Red Cross,the ability to provide virtual training and blended training,the options for train-the-trainer and having County staff perform the on-going trainings. C. The purpose of this agreement is to provide the County with CPR and First Aid training for the employees designated by their departments, through virtual, in-person, or blended options; as well as record keeping. It also provides train-the-trainer certification for County employees to provide continuous training for County departments. The parties therefore agree as follows: Article 1 Definitions The following definitions and/or terms shall have the meanings set forth below. 1.1 "Affiliated Companies" means any current or future entity under common ownership of HSI Holding Company Inc, currently including HSI APAC Pty. Ltd., HSI Canada Workplace Solutions Ltd., HSI USA Holding, Inc. 1.2 "Agreement" means this Professional Services Agreement. 1.3 "Content" means the services, programs, and content contained and delivered on electronic media that have been created by HSI or which HSI has the rights to. 1.4 "Default" shall have the meaning set forth in Section 5. 1.5 "End User Agreement" means the general terms of use for the Content, Platform or Sir kL. :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 Services, which HSI may update freely from time to time. At any time, the then current version of the End User Agreement applicable to the Content, Platform or Service. 1.6 "Platform" means the software platform owned or licensed by HSI and used to deliver the Content and or other services along with all software documentation (if applicable). 1.7 "Related Parties" has the meaning set forth in Section 3. 1.8 "Services" means, collectively, the provision of the Platform, the Content, and the professional services specified herein. 1.9 "User" means employees, agents, independent contractors and volunteers of the County accessing the Content, Platform or Services. 1.10 "We," "Us," "Our," or"HSI" means Health and Safety Institute. 1.11 "You," "Your," and "Customer" means the user of the Content and/or Platform if purchased on an individual basis or the company (or other legal entity)for which the Customer is accepting this Agreement, and all Platform users of the Customer which may include directors, managers, officers, employees, volunteers, affiliates, independent contractors, subcontractors, and agents (for which the Customer is responsible for ensuring their compliance with this Agreement). Article 2 Description of Services In accordance with a Purchase Order submitted by Customer, HSI shall provide training services to Customer's employees and volunteers in courses in one or more topics: Cardiopulmonary Resuscitation (CPR), proper use of an Automatic External Defibrillator(AED), and Basic First Aid (FA). These courses are designed to train students on the latest techniques in conducting CPR on adult employees and children in the workplace and safely using an AED, as well as Basic First Aid skills. Training will include assessing the scene for safety, identifying the signs, symptoms and need for CPR, notifying emergency response, conducting rescue breathing and performing chest compressions. Students will receive classroom, instructor-led training with hands-on, practical experience on topics including: • Understanding the signs and symptoms of a heart attack and heart failure • Notifying emergency response and 911 • Assessing the scene for hazards and safety • Performing chest compressions to include "Hands-Only" CPR • Performing rescue breathing 0 Using CPR equipment such as face shields and barrier devices P-22-093 • Implementing the use of an AED • Assessment • Bleeding control • Choking • Burns, and • Additional various basic first aid skills. Training includes approximately 4-5 hours of classroom training and hands-on practical exercises for up to ten (10) employees per course. Article 3 Ownership Except as specifically set forth in this Agreement, nothing contained in this Agreement shall by express grant, implication, estoppel, or otherwise, create in Customer any right, title, interest, or license in or to the inventions, patents, trade secrets, technical data, logos, graphics, icons and images, videos, other content, computer software, or software documentation of HSI, its Affiliated Companies,or its third party licensors(together,the"Related Parties"),as the case may be. HSI or its Related Parties, as the case may be, retain exclusive title, copyright, and all intellectual property rights in and to the Content and Platform. You may not create derivative works,decompile, reverse engineer,disassemble,or modify the Content or Platform. If Customer provide any suggestions, feedback, or improvements for the Content and Platform, then Customer grants HSI a worldwide, perpetual, irrevocable, royalty-free license to use and have others use such suggestions, feedback, and improvements for any purpose. 3.1 Federal Government End Use Provisions. Where applicable, HSI provides the Content and Platform (including related software and technology) for federal government end use solely in accordance with the following: Government technical data and software rights related to the Content and Platform include only those rights customarily provided to the public under the terms set forth in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data — Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with HSI to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Article 4 Term of Agreement 4.1 Term. This Agreement is effective on August 8, 2022 and terminates on August 8, 2025, except as provided in section 3.2, "Extension,"or Article 6, "Termination and Suspension," below. 4.2 Extension.The term of this Agreement may be extended for no more than two, one-year periods only upon written approval of both parties at least 30 days before the first day of the next Sir :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 one-year extension period. The Director of Human Resources, or their designee is authorized to sign the written approval on behalf of the Customer based on HSI's satisfactory performance.The extension of this Agreement by the Customer is not a waiver or compromise of any default or breach of this Agreement by HSI existing at the time of the extension whether or not known to the Customer. Article 5 Default By Customer 5.1 The following shall be considered events of"Default" by Customer: A. Failure to make timely payment of any amounts owing under Article 8 of this Agreement and/or the Order Form, if not cured within ten (10) days of written notice. In the event of an uncured Default or one which is deemed not curable, HSI may, at its option, suspend Customer's access to the Platform and Content or terminate the Agreement immediately upon written notice to Customer. In the event of a Default by Customer, HSI retains all of its rights and remedies at law, including the collection of all fees whether due and payable at the time of the alleged breach. Article 6 Termination and Suspension by Customer 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are contingent on the approval of funds by the appropriating government agency. If sufficient funds are not allocated,then the Customer, upon at least 30 days' advance written notice to HSI, may: A. Modify the services provided by the HSI under this Agreement; or B. Terminate this Agreement. 6.2 Termination for Breach. A. Upon determining that a breach (as defined in paragraph (C) below) has occurred,the Customer may give written notice of the breach to the HSI.The written notice may suspend performance under this Agreement, and must provide at least 30 days for HSI to cure the breach. B. If HSI fails to cure the breach to the Customer's satisfaction within the time stated in the written notice,the Customer may terminate this Agreement immediately. C. For purposes of this section, a breach occurs when, in the determination of the Customer, HSI has: 1. Obtained or used funds illegally or improperly; 2. Failed to comply with any part of this Agreement; :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 N&. - 3. Submitted a substantially incorrect or incomplete report to the Customer; or 4. Improperly performed any of its obligations under this Agreement. 6.3 Termination without Cause. In circumstances other than those set forth above, the Customer may terminate this Agreement by giving at least 30 days advance written notice to HSI. 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the Customer under this Article 6 is without penalty to or further obligation of the Customer. 6.5 Customer's Rights upon Termination. Upon termination for breach under this Article 6, the Customer may demand repayment by HSI of any monies disbursed to HSI under this Agreement that, in the Customer's sole judgment,were not expended in compliance with this Agreement. HSI shall promptly refund all such monies upon demand.This section survives the termination of this Agreement. Article 7 Inspections,Audits, and Public Records 7.1 Inspection of Documents. HSI shall make available to the Customer, and the Customer may examine at any time during business hours and as often as the Customer deems necessary, all of the HSI's records and data with respect to the matters covered by this Agreement,excluding attorney-client privileged communications. HSI shall, upon request by the Customer, permit the Customer to audit and inspect all of such records and data to ensure HSI's compliance with the terms of this Agreement. 7.2 State Audit Requirements. If the compensation to be paid by the Customer under this Agreement exceeds $10,000, HSI is subject to the examination and audit of the California State Auditor, as provided in Government Code section 8546.7, for a period of three years after final payment under this Agreement.This section survives the termination of this Agreement. 7.3 Public Records. The Customer is not limited in any manner with respect to its public disclosure of this Agreement or any record or data that HSI may provide to the Customer. The Customer's public disclosure of this Agreement or any record or data that HSI may provide to the Customer may include but is not limited to the following: (A) The Customer may voluntarily, or upon request by any member of the public or governmental agency, disclose this Agreement to the public or such governmental agency. (B) The Customer may voluntarily, or upon request by any member of the public or governmental agency,disclose to the public or such governmental agency any record or data that the HSI may provide to the County, unless such disclosure is prohibited by court order. (C) This Agreement, and any record or data that HSI may provide to the Customer, is subject to public disclosure under the Ralph M. Brown Act (California Government Code,Title 5, Division P-22-093 2, Part 1, Chapter 9, beginning with section 54950). (D) This Agreement, and any record or data that the HSI may provide to the Customer, is subject to public disclosure as a public record under the California Public Records Act (California Government Code,Title 1, Division 7, Chapter 3.5, beginning with section 6250) ("CPRA"). (E) This Agreement, and any record or data that the HSI may provide to the Customer, is subject to public disclosure as information concerning the conduct of the people's business of the State of California under California Constitution, Article 1, section 3, subdivision (b). (F) Any marking of confidentiality or restricted access upon or otherwise made with respect to any record or data that HSI may provide to the Customer shall be disregarded and have no effect on the County's right or duty to disclose to the public or governmental agency any such record or data. 7.4 Public Records Act Requests. If the Customer receives a written or oral request under the CPRA to publicly disclose any record that is in HSI's possession or control,and which the Customer has a right, under any provision of this Agreement or applicable law, to possess or control, then the Customer may demand, in writing,that the HSI deliver to the Customer,for purposes of public disclosure,the requested records that may be in the possession or control of the HSI. Within five business days after the Customer's demand, HSI shall (a) deliver to the Customer all of the requested records that are in the HSI's possession or control, together with a written statement that the HSI,after conducting a diligent search, has produced all requested records that are in the HSI's possession or control, or (b) provide to the Customer a written statement that HSI, after conducting a diligent search, does not possess or control any of the requested records. HSI shall cooperate with the Customer with respect to any Customer demand for such records. If HSI wishes to assert that any specific record or data is exempt from disclosure under the CPRA or other applicable law, it must deliver the record or data to the Customer and assert the exemption by citation to specific legal authority within the written statement that it provides to the Customer under this section. HSI's assertion of any exemption from disclosure is not binding on the Customer, but the Customer will give at least 10 days' advance written notice to HSI before disclosing any record subject to HSI's assertion of exemption from disclosure. HSI shall indemnify the Customer for any court-ordered award of costs or attorney's fees under the CPRA that results from the HSI's delay, claim of exemption, failure to produce any such records, or failure to cooperate with the Customer with respect to any Customer demand for any such records. Article 8 Payment 8.1 Customer agrees to pay,and HSI agrees to receive, compensation for the performance of its services under this Agreement as described in this Article. Customer agrees to pay the fees set forth below for the course(s) it orders. Description Fee Unit Instructor Development Course $375 Per person Fully in-person training done by HSI (Adult CPR, First Aid, AED) $720 For each 1-12 person group :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 Fully in-person training done by HSI (Adult and Child CPR, First Aid, AED) Blended training done by HSI (Adult CPR, First Aid,AED) $720 For each 1-12 person group Blended training done by HSI (Adult and Child CPR, First Aid,AED) Remote training done by HSI with shipped mannequin (Adult CPR, First Aid, $80 Per person AED) Remote training done by HSI with shipped mannequin (Adult and Child CPR, $85 Per person First Aid, AED) Fully in-person training done by County of Fresno Trainer (Adult CPR, First $12.50 Per person with digital Aid,AED) certification—not including student skill guide Fully in-person training done by County of Fresno Trainer (Adult and Child $12.50 Per person with digital CPR, First Aid, AED) certification—not including student skill guide Blended training done by County of Fresno Trainer(Adult CPR, First Aid,AED) $14.24 Per person with digital certification and digital workbook access Blended training done by County of Fresno Trainer(Adult and Child CPR, First $14.24 Per person with digital Aid,AED) certification and digital workbook access 8.2 Maximum Compensation. The maximum compensation payable to HSI under this Agreement is $40,000. The maximum compensation payable to HSI for the period July 11, 2022 through July 10, 2023 is Sixteen Thousand Dollars and No Cents ($16,000). The maximum compensation payable to HSI for the period July 11, 2023 through July 10, 2024 is Six Thousand Dollars and No Cents ($6,000). The maximum compensation payable to HSI for the period July 11, 2024 through July 10, 2025 is Six Thousand Dollars and No Cents ($6,000). If the term of this Agreement is extended for one additional year, then the maximum compensation payable to HSI for the period July 11, 2025 through July 10, 2026 is Six Thousand Dollars and No Cents ($6,000). If the term of this Agreement is extended for second additional year, then the maximum compensation payable to HSI for the period July 11, 2026 through July 10, 2027 is Six Thousand Dollars and No Cents($6,000). HSI acknowledges that Customer is a local government entity, and does so with notice that Customer's powers are limited by the California Constitution and by State law, and with notice that HSI may receive compensation under this Agreement only for services performed according to the term of this Agreement and while this Agreement is in effect, and subject to the maximum amount payable under this section. HSI further acknowledges that Customer's employees have no authority to pay HSI except as expressly provided in this Agreement. 8.3 Invoices. HSI shall submit monthly invoices to County of Fresno Human Resources— Risk Management, Safety Analyst, 2220 Tulare St., 161h floor, Fresno, CA 93721 or HRRiskManagement@fresnocountyca.gov. HSI shall submit each invoice within 60 days after the P-22-093 month in which HSI performs services and in any case within 60 days after the end of the term or termination of this Agreement. 8.4 Payment. Customer shall pay each correctly completed and timely submitted invoice within 45 days after receipt.The Customer shall remit any payment to the HSI's address specified in the invoice. 8.5 Incidental Expenses. HSI is solely responsible for all of its costs and expenses that are not specified as payable by the Customer under this Agreement. 8.6 Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees are thirty(30) or more days overdue, HSI may, without limiting HSI's other rights and remedies, suspend Your access to the Platform and Content until such amounts are paid in full. 8.7 Taxes. The fees set forth in Article 8 of this Agreement do taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively "Taxes"). Customer is responsible for promptly paying all Taxes associated with Customer's purchases hereunder. If HSI has the legal obligation to pay or collect Taxes for which the Customer is responsible, HSI will invoice Customer and Customer will pay that amount unless Customer provides HSI with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against Us based on Our income, property, and employees. Article 9 Content Updates At no additional cost to Customer, HSI shall make reasonable efforts to modify the Content from time to time to reflect material changes in regulatory standards by providing updates to standard content as regulatory requirements change and by making operating improvements, in each case the timing and necessity of which shall be determined by HSI in its sole reasonable discretion ("Updates"). Updates may contain, for example, updates in response to regulatory changes, additional questions added to the "question bank", and "lessons learned" information gathered during previous years. Updates are made for the benefit of our platform and its licensed users, and not for any particular user; Customer requested changes to customize Content will be available for an additional fee to be negotiated and documented in a separate written agreement between HSI and Customer. HSI reserves the right to charge for additional functionality and modules released for Customer's benefit, in HSI's sole but reasonable discretion. Article 10 Setup and Support During the term or extended term of this Agreement, HSI shall assist Customer with the initial setup of the Content and Platform via telephone and email support. HSI shall provide to Customer telephone and email support and troubleshooting of the Content and Platform for the term or P-22-093 extended term of this Agreement. HSI will make reasonable efforts to accommodate scheduling requests, subject to HSI's available resources. Any additional troubleshooting or support, including but not limited to on-site support, is subject to additional fees. Article 11 No Dependence on Future Functionality HSI warrants that the training and education services provided to Customer are current and correct to the best of HSI's knowledge at the time of delivery. Customer is responsible for application and comprehension of delivered training. HSI warrants that the training and education services provided to Customer are current and correct to the best of HSI's knowledge at the time of delivery. Customer is responsible for application and comprehension of delivered training. Article 12 Responsibilities; Restrictions 11.1 HSI Responsibilities. HSI will provide the Platform to the Customer during the Term in accordance with this Agreement. 11.2. Customer Responsibilities. Customer is responsible for all activity that occurs under its accounts by or on its behalf. Customer agrees to: (a) be solely responsible for all User activity, which must be in accordance with this Agreement and the documentation (b) be solely responsible for Customer data (other than with respect to the HSI obligations set forth in the Agreement) (c)obtain and maintain during the Term all necessary consents,agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content you will use in connection with the Services (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify HSI promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations. 11.3. Restrictions. Customer will not: :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation. Article 12 Proprietary Rights 12.1 HSI Ownership. Subject to any rights expressly granted to the Customer in the Agreement, HSI and its licensors, as applicable, reserve all right, title and interest in and to the Services, including information related to the provision of HSI's Services presented in any form and intellectual property rights (HSI Intellectual Property). 12.2. Customer Ownership. As between HSI and the Customer, the Customer owns all rights, title and interest in and to: (a) all Customer Data; and (b) any information supplied by the customer to HSI as may be specified in this agreement(collectively,Customer Materials).The Customer grants HSI a non-exclusive, non-transferable, royalty free, non-sub-licensable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to the Customer at Your request. No other rights or implied licenses in Customer Materials are granted to HSI other than as expressly set forth herein. 12.3 Feedback and Derivative Works. Customer is not required to provide: (a) any suggestions, enhancement requests, recommendations or other feedback (Feedback); or (b) any ideas, technology, developments, derivative works or other intellectual property (Derivative Works) related to the Services or any test features, services or products to which it is given access. If it does so, the Customer grants HSI a royalty-free,worldwide,transferable, sublicensable, irrevocable, perpetual license to use,or incorporate into any of its services, any Feedback or Derivative Works. The Customer may only create :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 ft1h.. Derivative Works relating to the Services or any test features, services or products to which it is given access, with the prior written consent from HSI. 13. lnsurance HSI shall maintain the following insurance: (a) Commercial General Liability Insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 in the aggregate (b) Automobile Liability Insurance with a minimum limit of$1,000,000 combined single limit per accident; (c) Workers' Compensation and Employers' Liability Insurance with a minimum limit of $1,000,000 per statute; (d) Cyber and Professional Liability Insurance with a minimum limit of $1,000,000 per claim and $5,000,000 aggregate; (e) Umbrella Liability with a minimum limit of$5,000,000 per occurrence and$5,000,000 in aggregate. This umbrella coverage only applies to sections 18(a), 18(b) and 18(c). Certificates of insurance evidencing the required coverage and limits shall be furnished to the Customer upon written request. HSI shall provide thirty(30) days' written notice to You in the event of cancellation, non-renewal or material change. 14. Limited Warranty; Disclaimers; Limitations of Liability HSI warrants that if the Platform and Content fails to substantially conform to the specifications in HIS's online guides or online help, and the non-conformity is promptly reported in writing by Customer with reasonable specificity so as to allow HSI to attempt to cure the non-conformity,then HSI shall, in its sole discretion, either substantially remedy the nonconformity within thirty (30) days after written notice from You, procure a substantially similar substitute product at no additional charge to Customer, or refund the purchase price for the affected product to Customer. In the event of a refund,the license granted under this Agreement shall immediately terminate. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE CONTENT AND PLATFORM ARE PROVIDED "AS-IS" AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,TITLE, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE. HSI DOES NOT WARRANT THAT THE CONTENT AND/OR PLATFORM WILL BE UNINTERRUPTED,TIMELY, OR ERROR FREE IN ALL INSTANCES. The software is provided to Customer as a general tool and is not a substitute for Customer's own professional assessment of requirements of law or Customer's internal processes and procedures. Customer are solely responsible for report submission, data verification and regulatory compliance. HSI has made reasonable efforts to present the material accurately, given the current information available when the Content and Platform was created, however, it is not possible or even reasonably practical for all variables posed by on-the-job application of this P-22-093 information to be covered in the Content and/or Platform. Therefore, Customer acknowledges that it has sole responsibility for ensuring the appropriateness and completeness of the Content and/or Platform as applied to its operational requirements, and to provide adequate training,including but not limited to safety training,to its staff and others to whom Customer provides training. HSI and any Related Parties shall not in any case be liable for any type of loss or damage arising from the Content or use of the Content or Platform, including but not limited to links to or from Our Content, and errors or omissions in the Content, whether or not advised of the possibility of such damages. Article 15 Indemnity 15.1 Indemnity by HSI. HSI agrees to indemnify and hold harmless Customer from and against any and all liabilities, claims,and expenses including reasonable attorneys'fees,arising from any third party claims that the Content and Platform (excluding any Customer additions, deletions, or other customizations) infringes or misappropriates any presently existing United States patent held by such third party, provided that Customer promptly notify HSI in writing of any such claim, suit, or proceeding and permit HSI to control the defense or settlement thereof and cooperate in the defense or settlement thereof. This indemnity shall not apply to the extent that Customer or any of Customer's employees or representatives alter,or that Customer request HSI to alter,the Content or Platform and such alteration is a contributing factor in the alleged infringement or misappropriation. HSI will have the option, at its expense,to employ counsel of its choosing to defend against such claim and to compromise, settle, or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon You may be affected without Customer's prior written consent. Customer shall have the option to be represented by counsel at Customer's own expense. Should the Content or Platform become, or in HSI's opinion be likely to become,the subject of an infringement claim covered by the indemnity set forth above, HSI may, at its sole option and expense,do one of the following: (a)procure for Customer the right to continue using the affected Content or Platform; (b) replace with non-infringing alternatives or modify the relevant affected material so that it becomes non-infringing; or (c) terminate this Agreement, or remove the affected Content or Platform from the Agreement, and refund to Customer any pre-paid fees where the affected Content or Platform was not started, delivered or completed, as applicable, prior to the effective date of such termination. The provisions of this section constitute your sole and exclusive remedy under this Agreement with respect to any claim of misappropriation or infringement of any intellectual property right of any third party. 15.2 Indemnity by Customer P-22-093 Customer agrees to indemnify and hold harmless HSI and its Related Parties from and against any and all liabilities, claims, and expenses, including reasonable attorneys' fees, arising from Customer's breach of any part of this Agreement,Customer's misuse of the Content and Platform or any Internet site linked to or from the Content. Customer also agrees to indemnify and hold harmless HSI from and against any and all liabilities, claims, and expenses, including reasonable attorneys' fees, arising from any third party claim that results from HSI's use of materials which Customer's voluntarily submit to HSI for inclusion in the Content or Platform (e.g.customizing the Platform and/or Content for your intended use), provided that HSI promptly notifies Customer in writing of any such claim, suit, or proceeding and permit Customer to control the defense or settlement thereof and cooperate in the defense or settlement thereof. Customer will have the option, at Customer expense,to employ counsel of Customer choosing to defend against such claim and to compromise,settle,or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon HSI may be affected without HSI's prior written consent. HSI shall have the option to be represented by counsel at its own expense. Article 16 Assignment This Agreement may not be assigned or otherwise transferred by either party in whole or in part, by operation of law or otherwise, without the express prior written consent of the other party, which consent will not be unreasonably withheld; provided, however,that either party may assign this Agreement in its entirety, without the other party's consent to its affiliate or in connection with a merger, acquisition,corporate reorganization, or sale of all or substantially all of its assets, provided that such party (a) is not a direct competitor of the non-assigning party, and (b) the assignee agrees in writing, prior to the consummation of the change in control event, to the assignment and assumption of this agreement, including the obligations set forth herein. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party,then such other party may terminate this Agreement immediately upon written notice. Subject to the foregoing, this Agreement shall benefit and be binding upon the respective successors and permitted assigns of the parties hereto. Article 17. Other Services HSI may also provide other services such as custom development services to Customer. Any such services or requirements not expressly stated in this Agreement are outside the scope of this Agreement and only will be provided by HSI subject to the terms of a separate written agreement executed by both parties. P-22-093 Article 18 Publicity If Customer enters into this Agreement, Customer agree that HSI may disclose to the public that Customer are a paying user of the Content and/or Platform. Customer further agrees that HSI may reference Customer on the customer section of HSI's website and in other marketing materials and presentations until such time as Customer's use of the Content and/or Platform is discontinued. Article 20 Severability If any part, term, or provision of the Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement,the validity of the remaining provisions shall not be affected thereby. Article 21 Modification Except as provided in this Agreement, no modification, amendment,or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a purchase order which is inconsistent with this Agreement is void. Article 22 Force Majeure Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, third-party computer or telecommunications equipment or software failures, default by subcontractors or suppliers, acts of God or of the public enemy,domestic or foreign governmental acts, labor,fire,flood,epidemic, and/or strikes. Article 23 Independent Contractors The parties are and will remain independent contractors. Neither party has any authority to act on behalf of the other party or to bind it and in no event will the parties be construed to be partners, employer-employee, or agents of each other. Article 24 Notices 24.1 Contact Information.The persons and their addresses having authority to give and ir 6136 :11 44 541.344.7429 Frisco Square Blvd Ste 285 Frisco,TX 75034 k1L_ receive notices provided for or permitted under this Agreement include the following: For the County: Risk Manager/Senior Safety Analyst County of Fresno 2220 Tulare Fresno, CA, 93712 HRRiskManagement@fresnocountyca.gov For HSI: Sales Executive Savannah Hannigan 1450 Westec Dr Eugene, OR 97402 SHannigan@HSI.com Phone: 949-429-2523 24.2 Change of Contact Information. Either party may change the information in section 24.1 by giving notice as provided in section 24.3. 24.3 Method of Delivery. Each notice between the County and HSI provided for or permitted under this Agreement must be in writing, state that it is a notice provided under this Agreement, and be delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by Portable Document Format(PDF) document attached to an email. A notice delivered by PDF document attached to an email is effective when transmission to the recipient is completed (but, if such transmission is completed outside of County business hours,then such delivery is deemed to be effective at the next beginning of a County business day), provided that the sender maintains a machine record of the completed transmission. 24.4 Claims Presentation. For all claims arising from or related to this Agreement, nothing in this Agreement establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). Article 25 Disclosure of Self-Dealing Transactions 25.1 Applicability. This Article 25 applies if HSI is operating as a corporation, or changes its status to operate as a corporation. 25.2 Duty to Disclose. If any member of HSI's board of directors is party to a self-dealing transaction, he or she shall disclose the transaction by completing and signing a "Self-Dealing Sir :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 Transaction Disclosure Form" (Exhibit A to this Agreement)and submitting it to the County before commencing the transaction or immediately after. 25.3 Definition. "Self-dealing transaction" means a transaction to which HSI is a party and in which one or more of its directors, as an individual, has a material financial interest. Article 26 Governing Law,Jurisdiction, and Venue The laws of the State of California govern all matters arising from or related to this Agreement. This Agreement is signed and performed in Fresno County, California. HSI consents to California jurisdiction for actions arising from or related to this Agreement, and, subject to the Government Claims Act, all such actions must be brought and maintained in Fresno County. Article 27 Entire Agreement This Agreement, constitutes the entire agreement between HSI and Customer with respect to Your use of the Content and Platform and the parties acknowledge that they have not relied on any representations outside of this Agreement in deciding to enter into this Agreement. The failure or delay of either party to strictly enforce any of the terms and conditions in this Agreement shall not be construed as a waiver of any right to enforce any prior, concurrent, or subsequent defaults. The parties are signing this Agreement on the date stated in the introductory clause. American Safety& Health Institute, Inc. COUNTY OF FRESNO Digitally signed by Gary (� `.'ary Cornuelle Date:2022.08.0812:29:10 -07'00' Duane Tumlinson,VP Sales Operations Gary Cornuelle,County of Fresno Purchasing Manager 6136 Frisco Square Blvd, Ste 285 2220 Tulare Frisco,TX 75034 Fresno, CA 93712 For accounting use only: Org No.: Account No.: Fund No.: Subclass No.: :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 Exhibit A Self-Dealing Transaction Disclosure Form In order to conduct business with the County of Fresno ("County"), members of a contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions that they are a party to while providing goods,performing services, or both for the County. A self-dealing transaction is defined below: "A self-dealing transaction means a transaction to which the corporation is a parry and in which one or more of its directors has a material financial interest." The definition above will be used for purposes of completing this disclosure form. Instructions (1) Enter board member's name,job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. The form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and(4). :11 44 541.344.7429 Frisco6136 Square BlvdFrisco,TX 75034 (1) Company Board Member Information: Name: Date: Job Title: (2) Company/Agency Name and Address: (3)Disclosure (Please describe the nature of the self-dealing transaction you are a party to) (4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code § 5233 (a) (5)Authorized Signature Signature: Date: