Safety Plus Program Management Service Agreement
This Safety Plus Program Management Service Agreement is made by and between Safeco, Inc., dba Safety Plus, whose address is 3725 Airport Blvd Suite 208-B, Mobile, AL 36608 (the “Service Provider”), and the client (“Client”) described in the Order Form executed in connection herewith, which is incorporated herein by reference (“Order Form,” and , together with this Safety Plus Program Management Service Agreement, Order Form the “Agreement”). Client and Service Provider are each referred to herein individually as a “Party,” and collectively as the “Parties.” Client acknowledges and agrees that it has read, understands, and agrees to be bound by the terms and conditions of this Agreement. In the event of a conflict between the terms of the Order Form and this Agreement, Order Form shall control.
Service Provider may revise and update this Agreement from time to time. Service Provider shall make commercially reasonable efforts to provide notice of material changes in accordance with applicable law, but all changes are effective immediately. Client’s continued use of the Services following the posting of a revised version of this Agreement constitutes Client’s agreement to such changes.
- The Client hereby hires the Service Provider to perform certain consulting and other services relating to the safety and regulatory compliance programs of the Client (the “Services”), including, without limitation, the Services more fully described in Attachment 1 attached to this Agreement and incorporated herein by reference (the “Attachment”). The Service Provider will consult with the officers and employees of the Client concerning the Services that the Client desires to receive depending on the operational needs, restrictions and/or direction of the Client representatives. Such Services may include some or all of the Services described in the Attachment.
- Term of Agreement. The term of this Agreement will begin on the Effective Date and will continue for the initial term set forth in the Attachment (the “Initial Term”), unless earlier terminated as permitted herein. Thereafter, unless earlier terminated as permitted herein, this Agreement automatically will renew for successive one-year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless either party notifies the other that it will not renew with sixty (60) days’ prior written notice. Either party may cancel this Agreement with sixty (60) days’ prior written notice to the other party, delivered in accordance with Section 16 (Notice).
- Termination Without Cause. Either party may terminate this Agreement without cause by thirty (30) days’ prior written notice to the other party. In the event that Client terminates this Agreement without cause, Client shall pay to Service Provider, on or before the effective date of termination, all Services Fees (as defined below) due for the remainder of the Initial Term or then-current Renewal Term.
- Termination for Cause. Notwithstanding anything to the contrary herein, this Agreement may be terminated: (a) by Service Provider, effective on written notice to Client, if Client fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Service Provider's delivery of written notice thereof; (b) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (c) by either party, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business
5. Compensation. During the Initial Term, the Service Provider will be paid the one-time start-up fee (“Start-Up Fee”) and the monthly fee for Services performed in accordance with this Agreement (“Service Fees”) as set forth in the Attachment. If the parties mutually agree in writing to add Services to those set forth in the Attachment, the parties will execute an Amendment to this Agreement (an “Amendment”) setting forth the additional Services and any additional Service Fees for such additional Services. In addition to the Service Fees, the Client will pay or reimburse the Service Provider for its direct cost of mailing, packaging, shipping and other costs incurred by the Service Provider on behalf of the Client in the performance of the Services, including, without limitation, reasonable travel expenses as mutually agreed by the parties (collectively, “Expenses”). Following the initial twelve months, and for each twelve-month period thereafter, an annual increase to the rate of the of the greater of 5% or the trailing twelve (12) month average increase in the Consumer Price Index as published by the United States Department of Labor, Bureau of Labor Statistics will be applied.
- Independent Contractor. Both the Client and the Service Provider agree that the Service Provider will act as an independent contractor in the performance of Services under this Agreement. Accordingly, the Service Provider is responsible for the compensation and supervision of its own employees used to perform the Services and shall be responsible for payment of all taxes including Federal, State and local taxes arising out of the Service Provider’s activities and all payments to the Service Provider under this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or any other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to bind the other in any manner whatsoever.
- Confidential Information. The Service Provider agrees that any proprietary information it receives during the Term of this Agreement, which concerns the personal, financial or any other affairs of the Client will be treated by the Service Provider as the confidential information of the Client (“Confidential Information”). The Service Provider will not use the Confidential Information for any purpose other than providing the Services to the Client, and the Service Provider will not disclose the Confidential Information to any third persons, firms or organizations unless required to do so by a court order, subpoena or other legal process. The Client’s Confidential Information includes but is not limited to the name of the Client, its officers, representative and directors and the fact that the Service Provider is providing Services to the Client. Confidential Information shall not include information that: (a) is already known to the Service Provider without restriction on use or disclosure; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Service Provider; (c) is developed by the Service Provider independently of, and without reference to, any Confidential Information of the Client; or (d) is received by the Service Provider from a third party who is not under any obligation to the Client to maintain the confidentiality of such information.
- Employment of Others; No Solicitation. The Client from time to time may request in writing that the Service Provider arrange for the services of others in connection with or as a supplement to the Services (“Third Party Services”). All costs to the Service Provider for such Third Party Services will be paid by the Client. In no event shall the Service Provider employ others without the prior written authorization of the Client. The Client unconditionally agrees not to hire, solicit, retain, or attempt to retain or hire, directly or indirectly, any of the employees, agents, subcontractors, contractors, or representatives of the Service Provider for three years after the termination of this Agreement. The Client further unconditionally agrees not to arrange for a third-party to hire, solicit or retain any of the employees, agents, subcontractors, contractors or representatives of the Service Provider for a period of three years after the termination of this agreement.
- Disclaimer of Warranties. The Client expressly acknowledges and agrees that the Client’s use of the Services and Solutions is at the Client’s sole risk, and that the Service Provider does not warrant against defects, inaccuracy, interruptions in, incompleteness of, usefulness, accuracy or completeness of any inspection, audit, review, recommendations, compliance ideas, material reviews, or other information used or reviewed in conjunction with this Agreement the Services or the Solutions (COLLECTIVELY, “DEFECTS”). EXCEPT FOR THE SPECIFIC WARRANTIES PROVIDED HEREIN ALL SERVICES AND SOLUTIONS ARE PROVIDED “AS IS.” THE SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE. THE SERVICE PROVIDER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES ARISING FROM USAGE OF TRADE AND COURSE OF DEALING. THE CLIENT IS RESPONSIBLE FOR MAINTAINING BACK-UPS OF DATA AND THE SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY OF THE CLIENT’S INFORMATION, DATA AND/OR SOFTWARE THAT MAY BE LOST, DAMAGED, OR CORRUPTED DUE TO CLIENT’S FAILURE TO DO SO.
- Limitation of Liability. In no event shall the Service Provider be responsible for AND THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL LIABILITY FOR any direct, indirect, incidental, special, or consequential damages (including, but not limited to: procurement or substitute goods for services; loss of use, data, or profits; or business interruption) however caused and under any theory of liability whatsoever, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of any services, Solutions, training materials, trainers, inspection results and any other information provided to the Client, even if the service provider has been advised of the possibility of such damage.
This disclaimer of liability, and non-warranty against defects applies to any damages or injury, including but not limited to those caused to employees, THIRD persons, or others by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of materials, whether for breach of contract, tortious behavior, negligence, or under any other cause of action.
The Client expressly understands that these disclaimers of warranties against defect, accuracy, and use of materials, reports, and information provided by the Service Provider in any form whatever, are at the Client’s sole discretion, and may be required to be investigated, validated or supplemented at any time by the Client’s independent resources.
- The Client is hereby informed that the Service Provider may make changes in the products, Services, Solutions and/or information described in these materials at any time without notice, but no such change shall materially, adversely reduce the level of Services provided to the Client.
- Client’s Decisions; Supplementation of Services. It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made solely by, the Client. In connection with the performance of the Services, the Service Provider shall be entitled to rely on all decisions and approvals of the Client. The Service Provider does not warrant or make any representations regarding the usefulness, accuracy, or completeness of any inspection, audit, review, recommendations, compliance ideas, material reviews, or other information used or reviewed in conjunction with this Agreement. The accuracy, adequacy, completeness, legality, reliability, or usefulness of any deliverable of the Services is relied on at the sole and complete discretion of the Client, and the Client is not restricted in any manner from supplementing the Services in this Agreement if it deems it appropriate to meet its particular needs or requirements. The work product, inspections, software, programs, materials and Solutions provided to the Client under this Agreement are designed to be but a part of the Client’s overall effort in meeting the Client’s internal business purposes related to a wide variety of areas, and it is mutually agreed that these efforts may or may not be required to be combined or supplemented with additional Client directed, supplied and verified information. The determinations necessary to ensure that the Client’s work conditions are safe and the Client’s employees understand how to safely handle site-specific and operational hazards are the sole responsibility of the Client, and the Service Provider’s assistance in these areas are expressly not warranted against Defects of any kind.
- Client Use of Services. Unless expressly stated in this Agreement and/or in the Attachment, only direct employees of the Client are authorized to participate in these Services. The Client may be required to report initially and monthly thereafter, all current employee names to the Service Provider to ensure that reports, online databases, and other deliverables remain accurate. Failure of the Client to timely provide this and other requested information may result in program inaccuracies, report errors, site entry issues, fines, penalties, and/or training lapses. The Client agrees to assume all responsibility for the above-mentioned inaccuracies and their resulting consequences. The Client expressly agrees that the Service Provider will charge the Client, at the most current non-discounted rates, for any use whatsoever, of the training materials, online sites or the Solutions by anyone not a direct employee of the Client at the time of its use.
- Risk Allotment. Due to the various industries and businesses that the Service Provider serves, the numerous laws, regulations, standards, restrictions, and mandates that may differ with each, and the fact that the Client maintains complete operational control over its worksites, the Service Provider will not be responsible for any fines, penalties, or other judgments against the Client resulting from lack of compliance or completeness of the Service Provider’s Services or any deliverables resulting from the Services. The Client agrees to hold-harmless, indemnify, and defend the Service Provider and its directors, officers, employees and shareholders from and against all claims, demands, liabilities, damages, losses, costs, and expenses, including attorneys’ fees and expenses, and the costs of investigation asserted against, incurred by or imposed upon the Service Provider associated with the Service Provider’s Services to the Client. Specifically, the Service Provider will not be required to and does not warrant that it will review and opine on “consensus standards” including, but not limited to ANSI, NFPA, EPA, ASTM, ASME, municipal/state codes/regulations, etc. Nothing in this Agreement will be construed or will imply that the Service Provider will provide engineering, equipment placement advice, suitability studies, or any other form of equipment appropriateness advice, and the Service Provider expressly does not warrant against Defect in any such opinion no matter how interpreted. The Service Provider expressly does not warrant that site safety inspections include anything that is not directly viewed and stated in written inspection reports. The Service Provider will only warrant that any safety infraction, unsafe condition, or unsafe act, was not observed if it is not specifically recorded on applicable inspection reports to the Client. The Client should, at its sole discretion, supplement the inspections of the Service Provider with those from independent sources and the Client’s own employees.
- Choice of Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of Delaware to the exclusion of the law of any other forum, without regard to its choice of law provisions. Any action to enforce this Agreement shall be instituted solely and exclusively in the Circuit Court of Mobile County, Alabama or in the United States District Court for the Southern District of Alabama.
- In the event of dispute or conflict arising out of this Agreement, the Services or Solutions, both parties agree to submit such dispute or conflict to binding arbitration in accordance with the Federal Arbitration Act and the laws of the State of Delaware. Prior to a party initiating an arbitration proceeding, it shall notify the other party of its intent to do so and the claim to be made in connection therewith, and executives of each party shall endeavor in good faith to resolve the matter for at least thirty days (or such shorter period as the parties may mutually agree). Subject to a party’s right to appeal, judgment on any arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing, if a party will suffer irreparable harm and injury for which monetary damages are not sufficient, such party shall be entitled to seek temporary and permanent restraining orders, injunctions, and/or other equitable relief, without any requirement of posting a bond or other security.
- All notices pertaining to this Agreement shall be in writing and shall be transmitted either by personal hand delivery, by a reputable commercial overnight courier, or mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at its address set forth in the introductory paragraph of this Agreement, unless written notice of change of address is given.
- If any provision of this Agreement where the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to the other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by applicable law.
- Counterparts and Electronic Execution. This Agreement may be executed and delivered by telecopy, facsimile or electronic signatures and in counterparts, each of which when executed and delivered shall be deemed an original, but all of which together shall be deemed one and the same agreement.
- Entire Agreement. This Agreement, together with all Attachments, schedules and exhibits, constitutes the entire agreement between the parties and supersedes any and all prior oral and written communications or agreements relating to the subject matter herein. Except as otherwise provided herein, this Agreement cannot be changed or modified except by written agreement signed by authorized representatives of both parties. This Agreement is an offer to provide Services and does not become a binding contract until accepted by the Service Provider at its offices in Mobile, Alabama.