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Home My WebLink About20221864.tiffConnvaC+ IN -100 38 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: SmartForce Software Contract Extension for 2026 DEPARTMENT: Weld County Sheriffs Office PERSON REQUESTING: Lt. Marcy Roles -Foos, Professional Standards DATE: 10/21/2025 Brief description of the problem/issue: The Sheriffs Office is requesting approval to renew our agreement with SmartForce for an administrative software. We have been using the product since 2022 and we are satisfied with the vendor and their product. The product is used for training records, administrative investigations, and inventory records. The cost for 2024 is $22,500.00. This cost is budgeted. What options exist for the Board? 1. BOCC can reject the contract. The Sheriffs Office will have to seek an RFI, RFP and form a bridge contract with SmartForce to continue business operations until a new vendor or contract is signed. 2. The BOCC can request a work session. The Sheriffs Office and IT will attend the work session to provide additional explanation and answers. The are no consequences. 3. The BOCC can approve the contract renewal. There is no added cost, and the needs of the Sheriffs Office would be met. Consequence= N/A Impacts: N/A Costs (Current Fiscal Year / Ongoing or Subsequent Fiscal Years): Current cost for 2025 $22,5000 Recommendation: IT and Legal reviewed the 2026 extension and approved the terms and conditions. The Sheriffs Office recommends the extension of this contract for 2026. Perry L. Buck Scott K. James Jason S. Maxey Lynette Peppier Kevin D. Ross Support Recommendation Schedule Place on BOCC AgendaWork Session Other/Comments: zriA ConseYtl- Ilsq)Sa- 1A Z/ZS CC : ohloaSe(SO) 11/1-21Z5 zo22- IS�04 so 004.3 SMARTFORCE® TECHN0LOGIES,INC. Check here if Renewal U ORDER FORM This Order Form (the "Order Form") is by and between SmartForce® Technologies, Inc. ("SmartForce") and the Subscriber identified below ("Subscriber"). THIS ORDER FORM IS ENTERED INTO PURSUANT TO AND SHALL BE GOVERNED BY THE THEN -CURRENT VERSION OF THE SMARTFORCE SERVICE SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT" AND, TOGETHER WITH THIS ORDER FORM, THE "AGREEMENT") EFFECT JUNE 29, 2022 AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. All capitalized terms not defined herein have the meaning given to them in the Subscription Agreement. This Agreement will become effective when this Order Form is executed by authorized representatives of both parties (the "Effective Date"). In the event of any conflict between this Order Form and the Subscription Agreement, the terms set forth in this Order Form will prevail, but solely with respect to this Order Form. SUBSCRIBER INFORMATION: Name: Weld County Sheriff's Office Principal Contact: Marcy Roles -Foos Full Address: 1950 O Street Greeley, CO 80631 Title: Lieutenant Phone: 970-400-2819 Fax: P.O. #: Email: mroles@weldgov.com Number of Users: Up to 500 Sworn Billing Contact & Email: Same Renewal Term: Annual Subscription Software as a Service Module(s) SmartForce® SmartIA Module (Installed in Weld County M365 Environment) SmartForce® SmartAdmin Module Support and Maintenance Total Annual Subscription Fees for a Modules and Features: January 1, 2026 through December 31, 2026 Annual Subscription Total Subscription Discount Fee. Fee $20,000.00 $5,000.00 $15,000.00 $15,000.00 $7,500.00 $7,500.00 Included $35,000.00 NA Included -$12,500.00 $22,500.00 Custom Development, Training, Implementation, and Other Services Description of Services Price NA NA www.smartforcetech.com 1303-800-5040 I info@smartforcetech.com 6400 S. Fiddlers Green Circle #300, Greenwood Village, CO 80111 SMARTFORCE® TECHNOLOGIES,INC. Payment Terms Initial Term Fees are due and payable in advance upon execution of the Order Form. Fees for Renewal Terms will be invoiced by SmartForce approximately 30 days before the start of the Renewal Term and are due and payable prior to the start of such Renewal Term. Fees for any Renewal Terms are subject to change. Agreement BY SIGNING BELOW, EACH PARTY AGREES TO BE BOUND BY THE TERMS OF THIS ORDER FORM AND THE SUBSCRIPTION AGREEMENT EFFECT JUNE 29, 2022, AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. THE SUBSCRIPTION AGREEMENT CONTAINS (I) DISCLAIMERS OF WARRANTIES WITH RESPECT TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM, DOCUMENTATION AND SERVICES; (II) LIMITATIONS ON EACH PARTY'S LIABILITY; (III) INDEMNIFICATION OBLIGATIONS OF EACH PARTY; AND (IV) OTHER MATERIAL TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE. BY SIGNING BELOW, EACH PARTY REPRESENTS IT HAS READ AND AGREES TO BE BOUND BY THE ORDER FORM AND THE SUBSCRIPTION AGREEMENT. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBSCRIBER: Weld County Sheriff's Office SMARTFORCE TECHNOLOGIES, INC. By (Signature): Name (Printed): Perry L. Buck .1„,e/ 't By (Signature): Z7e,fte w14 A'cu /z Name (Printed): Domenick Kaufman Title: Chair, Board of Weld County Commissioners Title: Head of Customer Success Date: Attest: Esther E. Gestck, Clerk to the Board NOV 1 2 2025 By: Deputy Clerk to the Board Date: 10/31/2025 www.smartforcetech.com 1303-800-5040 info@smartforcetech.com 5400 S. Fiddlers Green Circle #300, Greenwood Village, CO 80111 2 ZoZZ—�Blo�} SMARTFORCE TECHNOLOGIES, INC. SERVICE SUBSCRIPTION AGREEMENT IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. THE SMARTFORCE® SERVICE (AS DEFINED BELOW) IS PROVIDED TO SUBSCRIBER BY SMARTFORCE TECHNOLOGIES, INC. ("SMARTFORCE") SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE SUBSCRIPTION AGREEMENT ("AGREEMENT"). BY USING THE SMARTFORCE SERVICE, CLICKING ON THE "I ACCEPT' BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SMARTFORCE SERVICE, YOU: (I) AGREE TO THE TERMS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE SUBSCRIBER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SMARTFORCE SERVICE. THE TERM "SUBSCRIBER" MEANS THE ORGANIZATION TO WHICH THE SMARTFORCE SERVICE IS PROVIDED. EACH AND EVERY PERSON USING THE SMARTFORCE SERVICE ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON SUBSCRIBER'S BEHALF. IF SUBSCRIBER HAS ENTERED INTO A SIGNED HARDCOPY AGREEMENT REGARDING THE SUBJECT MATTER HEREOF WITH SMARTFORCE, THEN THAT SIGNED HARDCOPY AGREEMENT GOVERNS SUBSCRIBER'S USE OF THE SMARTFORCE SERVICE. 1. DEFINITIONS. As used in this Agreement: 1.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, asmay be necessary to allow Subscriber or any Authorized Users to access tie SmartForce Service. 1.2 "SmartForcee Service" means the agency management system deliveaed by SmartForce to Subscriber using the SmartForce System. 1.3 "SmartForce System" means the technology, including software, used by SmartForce to deliver the SmartForce Service to Subscriber. 1.4 "Authorized User" means Subscriber's employees, representatives. consultants, contractors or agents who are authorized to use the SmartForce Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose. 1.5 "Documentation" means the technical materials provided or made available by SmartForce to Subscriber that describe the features, functionality or operation of the SmartForce System. 1.6 "Error" means a reproducible failure of the SmartForce Service to substantially conform to the Documentation. 1.7 "Error Corrections" means bug fixes or workarounds intended to correct Errors in the SmartForce Service. 1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (t) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 1.9 "Order Form" means an order form, executed by both parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the SmartForce Service and/or performance of the Services, and any unique additional terms. 1.10 "Services'' means any services provided by SmartForce to Subscriber under this Agreement as set forth in an Order Form, including, but not limited to, provision of the SmartForce Service and Professional Services (as defined below). 1.11 "Subscriber Content" means any content provided, imported or uploaded to, or otherwise used by Subscriber or on Subscriber's behalf with the SmartForce Service or developed by or on behalf of Subscriber and used with the SmartForce Service. 2. PROVISION OF SERVICES 2.1 Orders. Subscriber may request that SmartForce provide the Services as specified in an Order Form. SmartForce will provide the Services in accordance with the applicable Order Form. 2.2 License Great. Subject to the terms and conditions of this Agreement, SmartForce grants to Subscriber a non-exclusive, non- transferable, non-sublicensabte license to, during the Term (as defined below), solely for Subscriber's internal business purposes and in accordance with the Documentation and the limitations set forth in Section 4.2 and the applicable Order Form, (a) access and use the SmartForce Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SmartForce Service. 2.3 Access. Subject to Subscriber's payment of the fees set forth in the applicable Order Form ("Fees"), and subject to any restriction set forth therein (e.g., a limit on the number of Authorized Users) SmartForce will provide Subscriber with access to the SmartForce Service during Term. SmartForce will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SmartForce Service in accordance with the Access Protocols. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SmartForce Service, and notify SmartForce promptly of any such unauthorized use known to Subscriber. 2.4 Authorized Users. Subscriber may permit any Authorized Users to access and use the features and functions of the SmartForce Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password ("User ID") for access to and use of the SmartForce Service. User IDs cannot be shared or used by more than one Authorized User at a time. 2.5 Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SmartForce Service to harvest, collect, gather or assemble information or data regarding other SmartForce subscribers without their consent; (b) access or copy any data or information of other Smeeforce subscribers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the SmartForce Service or the data contained therein; (d) harass or interfere with another SmartForce subscriber's use and enjoyment of the SmartForce Service; (f) reverse engineer, disassemble or decompile any component of the SmartForce System; (g) interfere in any manner with the operation of the SmartForce Service, or the SmartForce System or the hardware and network used to operate the SmartForce Service; (h) sublicense any of Subscriber's rights under this Agreement, or otherwise use the SmartForce Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the SmartForce Service; (j) access or use the SmartForce Service or Services to build a similar or competitive product or service or attempt to access the SmartForce Service through any unapproved interface; or (k) otherwise use the SmartForce Service in any manner that exceeds the scope of use permitted under Section 2.2 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Subscriber acknowledges and agrees that the SmartForce Service will not be used. and are not licensed for use, in connection with any of Subscriber's time - critical or mission -critical functions. 215999796 v4 1-1-2020 2.6 Availability of Sebseriber Content. Subscriber will make available all Subscriber Content necessary or desired for SmartForce to provide the Services or make available the SmartForce Service. Subscriber will obtain all third -party licenses, consents and permissions needed for SmartForce to use the Subscriber Content to provide the Services or make available the SmartForce Service. 2.7 Support. During the Tern, support provided to Subscriber shall comprise the following: (a) Help Desk. Authorized Users may send requests via SmartForce' help desk. (b) Error Corrections. SmartForce will use commercially reasonable efforts to correct all Errors reported by Subscriber in writing to SmartForce. SmartForce may not issue Error Corrections for all Errors. (c) Improvements. SmartForce may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that SmartForce then generally offers to other subscribers to the SmartForce Service. (d) Security. SmartForce will use commercially reasonable efforts to maintain the security of the SmartForce Service. 3. OWNERSHIP 3.1 SmartForce Technology. Subscriber acknowledges that SmartForee retains all right, title and interest in and to the SmartForce System, SmartForce Service and Documentation and all software and all SmartForce proprietary information and technology used by SmartForce or provided to Subscriber in connection with the SmartForce Service (the "SmartForce Technology"), and that the SmartForce Technology is protected by Intellectual Property Rights owned by or licensed to SmartForce. Other than as expressly set forth in this Agreement, no license or other rights in the SmartForce Technology are granted to Subscriber. 3.2 Feedback. Subscriber hereby grants to SmartForce a royalty -free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SmartForce Service my suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SmartForce Service. SmartForce will not identify Subscriber as the source of any such feedback. 3.3 Subscriber Content As between Subscriber and SmartForce, Subscriber will at all times remain the exclusive owner of such Subscriber Content Subscriber hereby grants to SmartForce a non- exclusive, worldwide, royalty -free and fully paid license (a) to use the Subscriber Content as necessary to provide the SmartForce Service to Subscriber and (b) to use aggregated and anonymized Subscriber Content (i) to improve the SmartForce Service and SmartForce's related product and service offerings; (ii) to create new products and services relating to the SmartForce Service (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the SmartForce Service, provided, however, that no Subscriber -only statistics will be disclosed to third parties without Subscriber's consent. Except as expressly specified in this Agreement, Subscriber's provision of or SmartForce's collection of the Subscriber Content hereunder does not transfer to SmartForce or any third party any rights in or ownership thereof. 3.4 Third Party Software. The SmartForce Service may utilize, contain or otherwise use certain third -party software (collectively, the "Third Party Software"). Third Party Software may be subject to additional licensing terms, which SmartForce may deliver or make available from time to time to Subscriber, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement 4. PROFESSIONAL SERVICES. Where the parties have agreed to SmartForce's provision of integration, design, development, operational and other professional services ("Professional Services"), they will enter into a mutually executed statement of work ("SOW") governing the provision of the initially required Professional Services. The SOW will 215999796 v4 1-1-2020 incorporate the terms and conditions of this Agreement To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern. The SOW will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in SmartForce immediately); and (iv) SmartForce's then -current rates for the performance of the Professional Services. 5. FEES AND EXPENSES; PAYMENTS 5.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by SmartForce under this Agreement, Subscriber will pay to SmartForce the Fees. Except as otherwise provided in the applicable Order Form, all fees are invoiced annually in advance. Subscriber shall pay such fees within thirty (30) days of receipt of an invoice. SmartForce shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. SmartForce may increase its fees annually upon written notice to Subscriber at least forty-five (45) days prior to expiration of the then - current term. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times. Interest will accrue on late payments at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.2 Taxes. All Fees invoiced under this Agreement are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on SmartForce's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the SmartForce Service to Subscriber. Subscriber will make all payments of Fees to SmartForce free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to SmartForce will be Subscriber's sole responsibility, and Subscriber will provide SmartForce with official receipts issued by the appropriate taxing authority, or such other evidence as the SmartForce may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend SmartForce in connection with any proceedings brought by any taxing authorities in connection with this Agreement. 53 Audit During the term of this Agreement and for a period of three (3) years thereafter, SmartForce shall have the right to review Subscriber's relevant records and inspect Subscriber's facilities to ensure compliance with this Agreement SmartForce will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber's normal operations. If any such audit should disclose any underpayment of fees, Subscriber will promptly pay SmartForce such underpaid amount, together with interest thereon at the rate specified in this Section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber will also pay SmartForce for SmartForce's expenses associated with such audit 6. SUBSCRIBER CONTENT AND RESPONSIBILITIES 6.1 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by SmartForce as part of the SmartForce Service shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pomographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. SmartForce is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber's sole cost and expense. Subscriber agrees that any use of the SmartForce Service contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized end improper use of the SmartForce Service. 6.2 Subscriber Responsibility for Data and Security. Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all User IDs and other Access Protocols required in order the access the SmartForce Service. Subscriber shall have the ability to export Subscriber Content out of the SmartForce Service and is encouraged to make its own back-ups of the Subscriber Content Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reiability, and appropriateness of all Subscriber Content 7. WARRANTY AND DISCLAIMER 7.1 Limited Warranty. SmartForce warrants to Subscriber that, when used as permitted by SmartForce and in accordance with the Documentation, the SmartForce Service will operate free from Errors during the Term. Provided that Subscriber notifies SmartForce in writing of any breach of the foregoing warranty during the Term, SmartForce shall, as its sole obligation and Subscriber's sole and exclusive remedy, provide the support set forth Section 2.7 of this Agreement 7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION ARE PROVIDED AS IS," "AS AVAILABLE," AND WITH ALL FAULTS, AND SMARTFORCE AND ITS AFFILIATES. SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES. REPRESENTATIONS, OR CONDITIONS, RELATING TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SMARTFORCE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SMARTFORCE SERVICE AND THE SMARTFORCE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR -FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. 8. LIMITATION OF LIABILITY 8.1 Types of Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SMARTFORCE NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SMARTFORCE SERVICE, THE SMARTFORCE SYSTEM OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SMARTFORCE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 8.2 Amount of Damages. THE MAXIMUM LIABILITY OF SMARTFORCE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SMARTFORCE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SMARTFORCE'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY 215999796 v4 /-/-2521/ WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THS AGREEMENT SHALL LIMIT OR EXCLUDE SMARTFORCEIS LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SMARTFORCE OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER. 8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 9. CONFIDENTIALITY 9.1 Confidential Information. During the term of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days atter such oral disclosure. Regardless of whether so marked or identified, the SmartForce Service, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of SmartForce. 9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees or agents who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to SmartForce). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon the Disclosing Party's request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by applicable law, including Open Records, Public Information Acts and Freedom of Information laws, or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order. 10. INDEMNIFICATION 10.1 By SmartForce. SmartForce will defend at its expense any suit brought against Subscriber, and will pay any settlement SmartForce makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the SmartForce Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. if any portion of the SmartForce Service becomes, or in SmartForce's opinion is likely to become, the subject of a claim of infringement, SmartForce may, at SmartForce's option: (a) procure for Subscriber the right to continue using the SmartForce System; (b) replace the SmartForce Services with non - infringing software or services which do not materially impair the functionality of the SmartForce Services; (c) modify the SmartForce Services so that it becomes non -infringing; or (d) terminate this Agreement and refund any Fees actually paid by Subscriber to SmartForce for the remainder of the Term then in effect, and upon such termination, Subscriber will immediately cease all use of the SmartForce Services. Notwithstanding the foregoing, SmartForce shall have no obligation under this section or otherwise with respect to any infringement claim based upon (e) any use of the SmartForce Service not in accordance with this Agreement or as specified in the Documentation; (f) any use of the SmartForce Service in combination with other products, equipment, software or data not supplied by SmartForce; or (g) any modification of the SmartForce by any person other than SmartForce or its authorized agents. This Section 10.1 states the sole and exclusive remedy of Subscriber and the entire liability of SmartForce, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions. 10.2 Procedure. The indemnifying parry's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit 11. TERM AND TERMINATION 11.1 Term. This agreement commences on the date subscriber accepts this Agreement and automatically renews on January 1 of each year unless either party gives 90 days written notice of non - renewal or the agreement is otherwise terminated in accordance with the terms herein (the .Term). In the event Subscriber does not receive annual appropriation of funding from the relevant governmental entity(ies) as necessary to pay the applicable fees hereunder, Subscriber may terminate this Agreement upon thirty (30) days prior written notice; provided, that, Subscriber will provide SmartForce with any documentation reasonably requested by SmartForce to evidence the lack of appropriate funding. Any such termination shall become effective on the next anniversary of the Effective Date. 11.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential information of the other party, as set forth in the Section 9.2; and (c) for one hundred twenty (120) days following after the effective date of termination, SmartForce will make available the Subscriber Content for export by Subscriber, after which time SmartForce shalt discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The Sections titled Definitions, Restrictions, Ownership, Fees and Expenses: Payment, Warranty and Disclaimers, Limitation of 215999796 v4 I-1-2020 Liability. Confidentiality i'ndeam)flratlon, E,(fect of Tereseattae. and Miscellaneous will survive expiration or termination of this Agreement for any reason. 12. MISCELLANEOUS 12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the law of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the international Sale of Goods does not apply to this Agreement 12.2 Compliance with Laws. Subscriber shall at all times comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services hereunder, including, but not limited to those relating to open records requests. 12.3 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SmartForce, or any products utilizing such data, in violation of the United States export laws or regulations. 12.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 12.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 12.6 Remedies. Except as provided in Section 10, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Services and Documentation contain valuable trade secrets and proprietary information of SmartForce, that any actual or threatened breach by Subscriber of its obligations with respect to Intellectual Property Rights of SmartForce will constitute immediate, irreparable harm to SmartForce for which monetary damages would bean inadequate remedy. In such case, SmartForce will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Services, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. 12.7 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. 12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money awed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. 12.9 Independent Contractors. Subscriber's relationship to SmartForce is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have and will not represent to any third patty that it has, any authority to act on behalf of SmartForce. 12.10 Notices, Each patty must deliver alt notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally -recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered moil, toy such notice will be considered to have been given floe (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party. 12.11 Entire Agreement. This Agreement, together with the applicable Order Form, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such 215999796 v4 I -I-2020 subject matters. Any preprinted terns included in any purchase order that are different from or are in addition to the terms of this Agreement shall be void and of no force or effect. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement. will be effective unless in writing and signed by an authorized signatory of Subscriber and SmartForum In the event of any conflict between the provisions in this Agreement and any Order Form, the teens of the Order Form will prevail, but only with respect to the Services to be performed under such Order Form (with the most recent prevailing over a previously executed Order Form). Contract For Entity Information Entity Name* Entity ID* SMARTFORCE TECHNOLOGIES INC @00045716 Contract Name* 2026 SMARTFORCE CONTRACT EXTENSION Contract Status CTB REVIEW Q New Entity? Contract ID 10038 Contract Lead * TMATTHEWS Contract Lead Email tmatthews@weld.gov Parent Contract ID Requires Board Approval YES Department Project # Contract Description* RENEWAL OF AGREEMENT WITH SMARTFORCE FOR ADMINISTRATIVE SOFTWARE. SHERIFF'S OFFICE USING PRODUCT SINCE 2022 FOR TRAINING RECORDS, ADMINISTRATIVE INVESTIGATIONS, AND INVENTORY RECORDS. COST FOR 2026 IS $22,500.00 Contract Description 2 Contract Type* RENEWAL Amount* $22,500.00 Renewable YES Automatic Renewal Grant IGA Department SHERIFF Department Email CM-Sheriff@weld.gov Department Head Email CM-Sheriff- DeptHead@weld.gov County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYATTORNEY@WEL D.GOV Requested BOCC Agenda Due Date Date* 11/06/2025 11/10/2025 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Contract Dates Effective Date Termination Notice Period Contact Information Contact Info Review Date" 10/01/2026 Renewal Date" 01/01/2027 Committed Delivery Date Expiration Date Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head DONNIE PATCH DH Approved Date 11/07/2025 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 11/12/2025 Finance Approver RUSTY WILLIAMS Legal Counsel BYRON HOWELL Finance Approved Date Legal Counsel Approved Date 11/07/2025 11/07/2025 Tyler Ref # AG 111225 Originator TMATTHEWS conAva c-+ u 5 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Smart Force Software Contract Extension for 2025 DEPARTMENT: Weld County Sheriff's Office DATE: 10/03/24 PERSON REQUESTING: Lt. Josh Noonan, Professional Standards Brief description of the problem/issue: The Sheriffs Office is requesting approval to renew our agreement with SmartForce for an administrative software. We have been using the product since 2022 and we are satisfied with the vendor and their product. The product is used for training records, administrative investigations, and inventory records. The cost for 2024 is $22,500.00. This cost is budgeted. What options exist for the Board? 1. BOCC can reject the contract. The Sheriff's Office will have to seek an RFI, RFP and form a bridge contract with SmartForce to continue business operations until a new vendor or contract is signed. 2. The BOCC can request a work session. The Sheriffs Office and IT will attend the work session to provide additional explanation and answers. The are no consequences. 3. The BOCC can approve the contract renewal. There is no added cost, and the needs of the Sheriff's Office would be met. Recommendation: IT and Legal reviewed the 2025 extension and approved the terms and conditions. The Sheriffs Office recommends the extension of this contract for 2025. Support Recommendation Schedule Place on BOCC Aoenda Work Session Other/Comments: Perry L. Buck, Pro-Tem Mike Freeman Scott K. James Kevin D. Ross , Chair Lori Saine Comical- ends, (/c0/24, cc:Onbawso) 11/co/Z4 2ozz- o 0043 SMARTFORCE® TECHNOLOGIES,INC. Check here if Renewal I X ORDER FORM This Order Form (the "Order Form") is by and between SmartForce® Technologies, Inc. ("SmartForce") and the Subscriber identified below ("Subscriber"). THIS ORDER FORM IS ENTERED INTO PURSUANT TO AND SHALL BE GOVERNED BY THE THEN -CURRENT VERSION OF THE SMARTFORCE SERVICE SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT" AND, TOGETHER WITH THIS ORDER FORM, THE "AGREEMENT") EFFECT JUNE 29, 2022 AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. All capitalized terms not defined herein have the meaning given to them in the Subscription Agreement. This Agreement will become effective when this Order Form is executed by authorized representatives of both parties (the "Effective Date"). In the event of any conflict between this Order Form and the Subscription Agreement, the terms set forth in this Order Form will prevail, but solely with respect to this Order Form. SUBSCRIBER INFORMATION: Name: Weld County Sheriffs Office Principal Contact: Josh Noonan Full Address: 1950 O Street Greeley, CO 80631 Title: Lieutenant Phone: 970-400-2819 Fax: P.O. #: Email: jnoonan@weldgov.com Number of Users: Up to 500 Sworn Billing Contact & Email: Same Renewal Terms Annual Subscription January 1, 2025 through December 31, 2025 Annual Subscription j I Total Subscription Software as a Service Module(s) Fee Discount SmartForce® SmartIA Module (Installed in Weld County M365 Environment) SmartForce® SmartAdmin Module Support and Maintenance Total Annual Subscription Fees for all Modules and Features: $20,000.00 $5,000.00 $15,000.00 $7,500.00 Included NA $35,000.00 -$12,500.00 Fee $15,000.00 $7,500.00 Included $22,500.00 Custom Development, Training, Implementation, and Other Services Price NA NA www.smartforcetech.com 303-800-5040 I info@smartforcetech.com 16400 S. Fiddlers Green Circle #300, Greenwood Village, CO 80111 SMARTFORCE® TECHN0L0GIE5,INC. Payment Terms Initial Term Fees are due and payable in advance upon execution of the Order Form. Fees for Renewal Terms will be invoiced by SmartForce approximately 30 days before the start of the Renewal Term and are due and payable prior to the start of such Renewal Term. Fees for any Renewal Terms are subject to change. Agreement BY SIGNING BELOW, EACH PARTY AGREES TO BE BOUND BY THE TERMS OF THIS ORDER FORM AND THE SUBSCRIPTION AGREEMENT EFFECT JUNE 29, 2022, AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. THE SUBSCRIPTION AGREEMENT CONTAINS (I) DISCLAIMERS OF WARRANTIES WITH RESPECT TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM, DOCUMENTATION AND SERVICES; (II) LIMITATIONS ON EACH PARTY'S LIABILITY; (III) INDEMNIFICATION OBLIGATIONS OF EACH PARTY; AND (IV) OTHER MATERIAL TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE. BY SIGNING BELOW, EACH PARTY REPRESENTS IT HAS READ AND AGREES TO BE BOUND BY THE ORDER FORM AND THE SUBSCRIPTION AGREEMENT. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBSCRIBER: Weld County Sheriff's Office By (Signature): Name (Printed): Kevin D. Ross SMARTFORCE TECHNOLOGIES, INC. By (Signature): 76`412 ,dfats 0 /caaoili4IL Name (Printed): Domenick Kaufman Title: Chair, Board of Weld County Commissioners Title: Head of Customer Success Date: NOV Q 6 2024 _ Date: 10/28/2024 ATTEST: Wselrifetki• Clerk to the Board By: l l' Deputy Clerk to the B d www.smartforcetech.com 1303-800-5040 I info@smartforcetech.com 5400 S. Fiddlers Green Circle #300, Greenwood Village, CO 80111 2 zozz-l4 SMARTFORCE TECHNOLOGIES, INC. SERVICE SUBSCRIPTION AGREEMENT IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. THE SMARTFORCE® SERVICE (AS DEFINED BELOW) IS PROVIDED TO SUBSCRIBER BY SMARTFORCE TECHNOLOGIES, INC. ("SMARTFORCE") SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE SUBSCRIPTION AGREEMENT ("AGREEMENT"). BY USING THE SMARTFORCE SERVICE, CLICKING ON THE "I ACCEPT' BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SMARTFORCE SERVICE, YOU: (1) AGREE TO THE TERMS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE SUBSCRIBER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SMARTFORCE SERVICE. THE TERM "SUBSCRIBER" MEANS THE ORGANIZATION TO WHICH THE SMARTFORCE SERVICE IS PROVIDED. EACH AND EVERY PERSON USING THE SMARTFORCE SERVICE ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON SUBSCRIBER'S BEHALF. IF SUBSCRIBER HAS ENTERED INTO A SIGNED HARDCOPY AGREEMENT REGARDING THE SUBJECT MATTER HEREOF WITH SMARTFORCE, THEN THAT SIGNED HARDCOPY AGREEMENT GOVERNS SUBSCRIBER'S USE OF THE SMARTFORCE SERVICE. 1. DEFINITIONS. As used in this Agreement: 1.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the SmartForce Service. 1.2 "SmartForce® Service" means the agency management system delivered by SmartForce to Subscriber using the SmartForce System. 1.3 "SmartForce System" means the technology, including software, used by SmartForce to deliver the SmartForce Service to Subscriber. 1.4 "Authorized User" means Subscriber's employees, representatives. consultants, contractors or agents who are authorized to use the SmartForce Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose. 1.5 "Documentation" means the technical materials provided or made available by SmartForce to Subscriber that describe the features, functionality or operation of the SmartForce System. 1.6 "Error" means a reproducible failure of the SmartForce Service to substantially conform to the Documentation. 1.7 "Error Corrections" means bug fixes or workarounds intended to connect Errors in the SmartForce Service. 1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 1.9 "Order Form" means an order form, executed by both parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the SmartForce Service and/or performance of the Services, and any unique additional terms. 1.10 "Services" means any services provided by SmartForce to Subscriber under this Agreement as set forth in an Order Form, including, but not limited to, provision of the SmatForce Service and Professional Services (as defined below). 1.11 "Subscriber Content" means any content provided, imported or uploaded to, or otherwise used by Subscriber or on Subscriber's behalf with the SmartForce Service or developed by or on behalf of Subscriber and used with the SmartForce Service. 2. PROVISION OF SERVICES 2.1 Orders. Subscriber may request that SmartForce provide the Services as specified in an Order Form. SmartForce will provide the Services in accordance with the applicable Order Form. 2.2 License Grant. Subject to the terms and conditions of this Agreement, SmartForce grants to Subscriber a non-exclusive, non- transferable, non-sublicensable license to, during the Term (as defined below), solely for Subscriber's intemal business purposes and in accordance with the Documentation and the limitations set forth in Section 4.2 and the applicable Order Fenn, (a) access and use the SmartForce Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SmartForce Service. 2.3 Access. Subject to Subscriber's payment of the fees set forth in the applicable Order Form ("Fees"), and subject to any restriction set forth therein (e.g., a limit on the number of Authorized Users) SmartForce will provide Subscriber with access to the SmartForce Service during Term. SmartForce will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SmartForce Service in accordance with the Access Protocols. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SmartForce Service, and notify SmartForce promptly of any such unauthorized use known to Subscriber. 2.4 Authorized Users, Subscriber may permit any Authorized Users to access and use the features and functions of the SmartForce Service as contemplated by this Agreement Each Authorized User will be assigned a unique user identification name and password ("User ID") for access to and use of the SmartForce Service. User IDs cannot be shared or used by more than one Authorized User at a time. 2.5 Restrictions, Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SmartForce Service to harvest, collect, gather or assemble information or data regarding other SmartForce subscribers without their consent; (b) access or copy any data or information of other SmartForce subscribers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the SmartForce Service or the data contained therein; (d) harass or interfere with another SmartForce subscriber's use and enjoyment of the SmartForce Service; (f) reverse engineer, disassemble or decompile any component of the SmartForce System; (g) interfere in any manner with the operation of the SmartForce Service, or the SmartForce System or the hardware and network used to operate the SmartForce Service; (h) sublicense any of Subscriber's rights under this Agreement, or otherwise use the SmartForce Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the SmartForce Service; (j) access or use the SmartForce Service or Services to build a similar or competitive product or service or attempt to access the SmartForce Service through any unapproved interface; or (k) otherwise use the SmartForce Service in any manner that exceeds the scope of use permitted under Section 2.2 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Subscriber acknowledges and agrees that the SmartForce Service will not be used. and are not licensed for use, in connection with any of Subscriber's time - critical or mission -critical functions. 215999796 v4 1.1.2020 2.6 Availability of Subscriber Content. Subscriber will make available all Subscriber Content necessary or desired for SmartForce to provide the Services or make available the SmartForce Service. Subscriber will obtain all third -party licenses, consents and permissions needed for SmartForce to use the Subscriber Content to provide the Services or make available the SmartForce Service. 2.7 Support. During the Term, support provided to Subscriber shall comprise the following: (a) Help Desk. Authorized Users may send requests via SmartForce' help desk. (b) Error Corrections. SmartForce will use commercially reasonable efforts to correct all Errors reported by Subscriber in writing to SmartForce. SmartForce may not issue Error Corrections for all Errors. (c) Improvements. SmartForce may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that SmarlForce then generally offers to other subscribers to the SmartForce Service. (d) Security. SmartForce will use commercially reasonable efforts to maintain the security of the SmartForce Service. 3. OWNERSHIP 3.1 SmartForce Technology. Subscriber acknowledges that SmartForce retains all right, title and interest in and to the SmartForce System, SmartForce Service and Documentation and all software and all SmartForce proprietary information and technology used by SmartForce or provided to Subscriber in connection with the SmartForce Service (the "SmartForce Technology"), and that the SmartForce Technology is protected by Intellectual Property Rights owned by or licensed to SmartForce. Other than as expressly set forth in this Agreement, no license or other rights in the SmartForce Technology are granted to Subscriber. 3.2 Feedback. Subscriber hereby grants to SmartForce a royalty -free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SmartForce Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SmartForce Service. SmartForce will not identify Subscriber as the source of any such feedback. 3.3 Subscriber Content As between Subscriber and SmartForce, Subscriber will at all times remain the exclusive owner of such Subscriber Content Subscriber hereby grants to SmartForce a non- exclusive, worldwide, royalty -free and fully paid license (a) to use the Subscriber Content as necessary to provide the SmartForce Service to Subscriber and (b) to use aggregated and anonymized Subscriber Content (i) to improve the SmartForce Service and SmartForce's related product and service offerings; (ii) to create new products and services relating to the SmartForce Service (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the SmartForce Service, provided, however, that no Subscriber -only statistics will be disclosed to third parties without Subscriber's consent. Except as expressly specified in this Agreement, Subscriber's provision of or SmartForce's collection of the Subscriber Content hereunder does not transfer to SmartForce or any third party any rights in or ownership thereof. 3.4 Third Party Software. The SmartForce Service may utilize, contain or otherwise use certain third -party software (collectively, the "Third Party Software"). Third Party Software may be subject to additional licensing terms, which SmartForce may deliver or make available from time to time to Subscriber, which are incorporated herein by reference. and which supersede any contradictory terms in this Agreement 4. PROFESSIONAL SERVICES. Where the parties have agreed to SmartForce's provision of integration, design, development, operational and other professional services ('Professional Services"), they will enter into a mutually executed statement of work ("SOW") governing the provision of the initially required Professional Services. The SOW will 215999796 v4 I-/-2020 incorporate the terms and conditions of this Agreement To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern. The SOW will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in SmartForce immediately); and (iv) SmartForce's then -current rates for the performance of the Professional Services. 5. FEES AND EXPENSES; PAYMENTS 5.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by SmartForce under this Agreement, Subscriber will pay to SmartForce the Fees. Except as otherwise provided in the applicable Order Form, all fees are invoiced annually in advance. Subscriber shall pay such fees within thirty (30) days of receipt of an invoice. SmartForce shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. SmartForce may increase its fees annually upon written notice to Subscriber at least forty-five (45) days prior to expiration of the then - current term. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times. Interest will accrue on late payments at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.2 Taxes. All Fees invoiced under this Agreement are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on SmartForce's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the SmartForce Service to Subscriber. Subscriber will make all payments of Fees to SmartForce free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to SmartForce will be Subscriber's sole responsibility, and Subscriber will provide SmartForce with official receipts issued by the appropriate taxing authority, or such other evidence as the SmartForce may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend SmartForce in connection with any proceedings brought by any taxing authorities in connection with this Agreement 5.3 Audit During the term of this Agreement and for a period of three (3) years thereafter, SmartForce shall have the right to review Subscriber's relevant records and inspect Subscriber's facilities to ensure compliance with this Agreement SmartForce will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business horns in a manner that does not unreasonably interfere with Subscriber's normal operations. If any such audit should disclose any underpayment of fees, Subscriber will promptly pay SmartForce such underpaid amount, together with interest thereon at the rate specified in this Section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber will also pay SmartForce for SmartForce's expenses associated with such audit. 6. SUBSCRIBER CONTENT AND RESPONSIBILITIES 6.1 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by SmartForce as part of the SmartForce Service shall not (a) infringe. misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. SmaiForce is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber's sole cost and expense. Subscriber agrees that any use of the SmanForce Service contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the SmartForce Service. 6.2 Subscriber Responsibility for Data and Security. Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all User IDs and other Access Protocols required in order the access the SmartForce Service. Subscriber shall have the ability to export Subscriber Content out of the SmartForce Service and is encouraged to make its own back-ups of the Subscriber Content Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content 7. WARRANTY AND DISCLAIMER 7.1 Limited Warranty. SmartForce warrants to Subscriber that, when used as permitted by SmartForce and in accordance with the Documentation, the SmartForce Service will operate free from Errors during the Term. Provided that Subscriber notifies SmartForce in writing of any breach of the foregoing warranty during the Tenn, SmartForce shall, as its sole obligation and Subscriber's sole and exclusive remedy, provide the support set forth Section 2.7 of this Agreement 7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION ARE PROVIDED AS IS," "AS AVAILABLE," AND WITH ALL FAULTS, AND SMARTFORCE AND ITS AFFILIATES. SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES. REPRESENTATIONS, OR CONDITIONS. RELATING TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SMARTFORCE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SMARTFORCE SERVICE AND THE SMARTFORCE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR -FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. 8. LIMITATION OF LIABILITY 8.1 Types of Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SMARTFORCE NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SMARTFORCE SERVICE, THE SMARTFORCE SYSTEM OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SMARTFORCE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 8.2 AmouatofDamages. THE MAXIMUM LIABILITY OF SMARTFORCE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SMARTFORCE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SMARTFORCE'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY 215499796 v4 1-1-2020 WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SMARTFORCE'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SMARTFORCE OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER. 8.3 Basis of the Bargain. The panties agree that the limitations of liability set forth in this Section 8 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 9. CONFIDENTIALITY 9.1 Confidential Information. During the term of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the SmartForce Service, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of SmartForce. 9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third panty any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees or agents who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to SmartForce). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon the Disclosing Party's request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by applicable law, including Open Records. Public Information Acts and Freedom of Information laws, or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order. 10. INDEMNIFICATION 10.1 By SmartForce. SmartForce will defend at its expense any suit brought against Subscriber, and will pay any settlement SmartForce makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the SmartForce Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. If any portion of the SmartForce Service becomes, or in SmartForce's opinion is likely to become, the subject of a claim of infringement, SmartForce may, at SmartForce's option: (a) procure for Subscriber the right to continue wing the SmartForce System; (b) replace the SmartForce Services with non - infringing software or services which do not materially impair the functionality of the SmartForce Services; (c) modify the SmartForce Services so that it becomes non -infringing; or (d) terminate this Agreement and refund any Fees actually paid by Subscriber to SmartForce for the remainder of the Term then in effect, and upon such termination, Subscriber will immediately cease all use of the SmartForce Services. Notwithstanding the foregoing, SmartForce shall have no obligation under this section or otherwise with respect to any infringement claim based upon (e) any use of the SmartForce Service not in accordance with this Agreement or as specified in the Documentation; (f) any use of the SmartForce Service in combination with other products, equipment, software or data not supplied by SmartForce; or (g) any modification of the SmartForce by any person other than SmartForce or its authorized agents. This Section 10.1 states the sole and exclusive remedy of Subscriber and the entire liability of SmartForce, or any of the officers, directors, employees, shareholders, contenders or representatives of the foregoing, for infringement claims and actions. 10.2 Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying parry in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. 11. TERM AND TERMINATION 11.1 Term. This agreement commences on the date subscriber accepts this Agreement and automatically renews on January 1 of each year unless either party gives 90 days written notice of non - renewal or the agreement is otherwise terminated in accordance with the terms herein (the "Tern). In the event Subscriber does not receive annual appropriation of funding from the relevant governmental entity(ies) as necessary to pay the applicable fees hereunder, Subscriber may terminate this Agreement upon thirty (30) days prior written notice; provided, that, Subscriber will provide SmartForce with any documentation reasonably requested by SmartForce to evidence the lack of appropriate funding. Any such termination shall become effective on the next anniversary of the Effective Date. 11.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other parry materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to retum all Confidential Information of the other parry, as set forth in the Section 9.2; and (c) for one hundred twenty (120) days following after the effective date of termination, SmartForce will make available the Subscriber Content for export by Subscriber, after which time SmartForce shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The Sections titled Definitions, Restrictions, Ownership, Fees and Expenses; Payment, Warranty and Disclaimers, Limitation of 215999796 v4 0.1.2020 Liability. Confidentiality, lndemnifr:cation. Ef bee of Termination, and Misce/laireooe will survive expiration or termination of this Agreement for any reason. 12. MISCELLANEOUS 12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the law of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement 12.2 Compliance with Laws. Subscriber shall at all times comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services hereunder, including, but not limited to those relating to open records requests. 12.3 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SmartForce, or any products utilizing such data, in violation of the United States export laws or regulations. 12.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 12.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 12.6 Remedies. Except as provided in Section 10, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Services and Documentation contain valuable trade secrets and proprietary information of SmartForce, that any actual or threatened breach by Subscriber of its obligations with respect to Intellectual Property Rights of SmartForce will constitute immediate, irreparable harm to SmartForce for which monetary damages would be an inadequate remedy. In such case, SmartForce will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Services, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. 12.7 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either parry may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. 12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. 12.9 Independent Contractors. Subscriber's relationship to SmartForce is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have and will not represent to any third party that it has, any authority to act on behalf of SmartForce. 12.10 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally -recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party. 12.11 Entire Agreement. This Agreement, together with the applicable Order Form, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such 2159997. v4 1-1-202/1 subject matters. Any preprinted terms included in any purchase order that are different from or am in addition to the terms of this Agreement shall be void and of no force or effect. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and SmartForce. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of the Order Form will prevail, but only with respect to the Services to be performed under such Order Form (with the most recent prevailing over a previously executed Order Form). Entity Information Entity Name* Entity ID* SMARTFORCE TECHNOLOGIES INC @00045716 Contract Name* 2025 SMARTFORCE CONTRACT EXTENSION Contract Status CTB REVIEW Contract ID 8835 Contract Lead * JNOONAN Q New Entity? Parent Contract ID 6046 Requires Board Approval YES Contract Lead Email Department Project # jnoonan@weld.gov;skohl graf@weld.gov Contract Description* ORIGINAL 2022 SMARTFORCE CONTRACT (BRIDGE) FOR PROF STANDARDS AND INTERNAL AFFAIRS Contract Description 2 Contract Type" AMENDMENT Amount* $22,500.00 Renewable* YES Automatic Renewal Grant IGA Department SHERIFF Department Email CM-Sheriff@weld.gov Department Head Email CM-Sheriff- DeptHead@weld.gov County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYATTORNEY@WEL D.GOV If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Requested BOCC Agenda Due Date Date* 11/02/2024 11/06/2024 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Contract Dates Effective Date Termination Notice Period Contact Information Contact Info Review Date * 10/01/2025 Renewal Date* 12/31/2025 Committed Delivery Date Expiration Date Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head DONNIE PATCH DH Approved Date 10/31/2024 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 11/06/2024 Finance Approver CHERYL PATTELLI Legal Counsel BYRON HOWELL Finance Approved Date Legal Counsel Approved Date 11/01/2024 11/01/2024 Tyler Ref # AG 110624 Originator SKOHLGRAF Co► ac+Ekl7O BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: SmartForce Software Renewal DEPARTMENT: Weld County Sheriffs Office DATE: 12/15/2023 PERSON REQUESTING: Administration Lt. Josh Noonan Brief description of the problem/issue: The Sheriffs Office is requesting approval to renew our agreement with SmartForce for an administrative software. We have been using the product since 2022 and we are satisfied with the vendor and their product. The product is used for training records, administrative investigations, and inventory records. The cost for 2024 is $22,500.00. This cost is budgeted. What options exist for the Board? 1. BOCC can reject the contract. The Sheriffs Office will have to seek an RFI, RFP and form a bridge contract with SmartForce to continue business operations until a new vendor or contract is signed. 2. The BOCC can request a work session. The Sheriffs Office and IT will attend the work session to provide additional explanation and answers. The are no consequences. 3. The BOCC can approve the contract renewal. There is no added cost, and the needs of the Sheriffs Office would be met. Impacts: see above #1 Cost $22,500 Recommendation: Approve the contract for 2024 with SmartForce to provide a continued software solution that meets the Sheriffs Office need. Support Recommendation Schedule Place on BOCC Agenda Work Session Other/Comments: Perry L. Buck, Pro-Tem Mike Freeman, Chair Scott K. James Kevin D. Ross Lori Saine Coma4 t2/27 / 2622-raoLi So 0045 Cheryl Hoffman From: Sent: To: Subject: Approve Sent from my iPhone Mike Freeman Monday, December 18, 2023 11:45 AM Cheryl Hoffman Re: 9 Pass arounds for review > On Dec 18, 2023, at 1:57 PM, Cheryl Hoffman <choffman@weld.gov> wrote: > Hi Mike, > Please review these 9 pass arounds and let me know if you approve placement on the BOCC agenda. > Thank you! > Cheryl L. Hoffman > Deputy Clerk to the Board > 1150 O Street/P.O. Box 758 > Greeley, CO 80632 > Tel: (970) 400.4227 > choffman@weld.gov SMARTFORCE® TECHN0L0GIES,INC. Check here if Renewal U ORDER FORM This Order Form (the "Order Form") is by and between SmartForce® Technologies, Inc. ("SmartForce") and the Subscriber identified below ("Subscriber"). THIS ORDER FORM IS ENTERED INTO PURSUANT TO AND SHALL BE GOVERNED BY THE THEN -CURRENT VERSION OF THE SMARTFORCE SERVICE SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT" AND, TOGETHER WITH THIS ORDER FORM, THE "AGREEMENT") EFFECT JUNE 29, 2022 AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. All capitalized terms not defined herein have the meaning given to them in the Subscription Agreement. This Agreement will become effective when this Order Form is executed by authorized representatives of both parties (the "Effective Date"). In the event of any conflict between this Order Form and the Subscription Agreement, the terms set forth in this Order Form will prevail, but solely with respect to this Order Form. SUBSCRIBER INFORMATION: Name: Weld County Sheriff's Office Principal Contact: Josh Noonan Full Address: 1950 O Street Greeley, CO 80631 Title: Lieutenant Phone: 970-400-2819 Fax: P.O. #: Email: jnoonan@weldgov.com Number of Users: Up to 500 Sworn Billing Contact & Email: Same r -- Renewal Term January 1, 2024 through December 31, 2024 Software as a Service Module(s) Annual Subscription I Discount Fee SmartForce® SmartlA Module (Installed $20,000.00 $5,000.00 in Weld County M365 Environment) SmartForce® SmartAdmin Module Support and Maintenance Total Annual Subscription Fees for all Modules and Features: $15,000.00 $7,500.00 Included NA $35,000.00 $12,500.00 Total Annual Subscription Fee $15,000.00 $7,500.00 Included $22,500.00 Custom Development, Training, Implementation, and Other Services Description of Services NA Price NA www.smartforcetech.com 1303-800-5040 I info@smartforcetech.com 16400 S. Fiddlers Green Circle #250, Greenwood Village, CO 80111 SMARTFORCE® TECHN0LOGIE5,INC. Payment Terms Initial Term Fees are due and payable in advance upon execution of the Order Form. Fees for Renewal Terms will be invoiced by SmartForce approximately 30 days before the start of the Renewal Term and are due and payable prior to the start of such Renewal Term. Fees for any Renewal Terms are subject to change. Agreement BY SIGNING BELOW, EACH PARTY AGREES TO BE BOUND BY THE TERMS OF THIS ORDER FORM AND THE SUBSCRIPTION AGREEMENT EFFECT JUNE 29, 2022, AND IDENTIFIED BY TYLER DOCUMENT NUMBER 20221864 AND SMARTFORCE DOCUMENT 215999796 V.4, WHICH ARE INCORPORATED HEREIN BY REFERENCE. THE SUBSCRIPTION AGREEMENT CONTAINS (I) DISCLAIMERS OF WARRANTIES WITH RESPECT TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM, DOCUMENTATION AND SERVICES; (II) LIMITATIONS ON EACH PARTY'S LIABILITY; (III) INDEMNIFICATION OBLIGATIONS OF EACH PARTY; AND (IV) OTHER MATERIAL TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE. BY SIGNING BELOW, EACH PARTY REPRESENTS IT HAS READ AND AGREES TO BE BOUND BY THE ORDER FORM AND THE SUBSCRIPTION AGREEMENT. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBSCRIBER: Weld County Sheriffs Office SMARTFORCE TECHNOLOGIES, �iINC. By (Signature): � cl By (Signature): Parm.r scut A --a �� Name (Printed): Mike Freeman Name (Printed): Domenick Kaufman Title: Chair Date: 12/27/2023 ATTEST: ddrhiti Ci• acido;„k, By: Title: Head of Customer Success Date: 12/14/2023 www.smartforcetech_com l 303-800-5040 l info@smartforcetech.com 6400 S. Fiddlers Green Circle #250, Greenwood Village, CO 80111 2 2o22 -1864 SMARTFORCE TECHNOLOGIES, INC. SERVICE SUBSCRIPTION AGREEMENT IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. THE SMARTFORCE® SERVICE (AS DEFINED BELOW) IS PROVIDED TO SUBSCRIBER BY SMARTFORCE TECHNOLOGIES, INC. ("SMARTFORCE") SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE SUBSCRIPTION AGREEMENT ("AGREEMENT"). BY USING THE SMARTFORCE SERVICE, CLICKING ON THE "I ACCEPT' BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SMARTFORCE SERVICE, YOU: (I) AGREE TO THE TERMS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE SUBSCRIBER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SMARTFORCE SERVICE. THE TERM "SUBSCRIBER" MEANS THE ORGANIZATION TO WHICH THE SMARTFORCE SERVICE IS PROVIDED. EACH AND EVERY PERSON USING THE SMARTFORCE SERVICE ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON SUBSCRIBER'S BEHALF. IF SUBSCRIBER HAS ENTERED INTO A SIGNED HARDCOPY AGREEMENT REGARDING THE SUBJECT MATTER HEREOF WITH SMARTFORCE, THEN THAT SIGNED HARDCOPY AGREEMENT GOVERNS SUBSCRIBER'S USE OF THE SMARTFORCE SERVICE. 1. DEFINITIONS. As used in this Agreement: 1.1 "Access Protocols" means the passwords. access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the SmartForce Service. 1.2 "SmartForce® Service' means the agency management system delivered by SmartForce to Subscriber using the SmartForce System. 1.3 "SmartForce System" means the technology, including software, used by SmartForce to deliver the SmartForce Service to Subscriber. IA "Authorized User" means Subscriber's employees, representatives, consultants, contractors or agents who are authorized to use the SmartForce Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose. 13 "Documentation" means the technical materials provided or made available by SmartForce to Subscriber that describe the features, functionality or operation of the SmartForce System. 1.6 "Error" means a reproducible failure of the SmartForce Service to substantially conform to the Documentation. 1.7 "Error Corrections" means bug fixes or workarounds intended to correct Errors in the SmartForce Service. 1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 1.9 "Order Form" means an order forth, executed by both parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the SmartForce Service and/or performance of the Services, and any unique additional terms. 1.10 "Services" means any services provided by SmartForce to Subscriber under this Agreement as set forth in an Order Fees, including, but not limited to, provision of the SmartForce Service and Professional Services (as defined below). 1.11 "Subscriber Content" means any content provided, imported or uploaded to, or otherwise used by Subscriber or on Subscriber's behalf with the SmartForce Service or developed by or on behalf of Subscriber and used with the SmartForce Service. 2. PROVISION OF SERVICES 2.1 Orders. Subscriber may request that SmartForce provide the Services as specified in an Order Form. SmartForce will provide the Services in accordance with the applicable Order Form. 2.2 License Grant. Subject to the terms and conditions of this Agreement, SmartForce grants to Subscriber a non-exclusive, non- transferable, non-sublicensable license to, during the Term (as defined below), solely for Subscriber's internal business purposes and in accordance with the Documentation and the limitations set forth in Section 4.2 and the applicable Order Form, (a) access and use the SmartForce Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SmartForce Service. 2.3 Access. Subject to Subscriber's payment of the fees set forth in the applicable Order Form ("Fees"), and subject to any restriction set forth therein (e.g., a limit on the number of Authorized Users) SmartForce will provide Subscriber with access to the SmartForce Service during Term. SmarsForce will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SmartForce Service in accordance with the Access Protocols. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SmartForce Service, and notify SmartForce promptly of any such unauthorized use known to Subscriber. 2,4 Authorized Users. Subscriber may permit any Authorized Users to access and use the features and functions of the SmartForce Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password ("User ID") for access to and use of the SmartForce Service. User IDs cannot be shared or used by more than one Authorized User at a time. 2.3 Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SmartForce Service to harvest, collect, gather or assemble information or data regarding other SmartForce subscribers without their consent; (b) access or copy any data or infomtation of other SmartForce subscribers without their consent (c) knowingly interfere with or disrupt the integrity or performance of the SmartForce Service or the data contained therein; (d) harass or interfere with another SmartForce subscriber's use and enjoyment of the SmartForce Service; (f) reverse engineer, disassemble or decompile any component of the SmartForce System; (g) interfere in any manner with the operation of the SmartForce Service, or the SmartForce System or the hardware and network used to operate the SmartForce Service; (h) sublicense any of Subscriber's rights under this Agreement, or otherwise use the SmartForce Service for the benefit of a third pany or to operate a service bureau; (i) modify, copy or make derivative works based an any part of the SmartForce Service; (j) access or use the SmartForce Service or Services to build a similar or competitive product or service or attempt to access the SmartForce Service through any unapproved interface; or (k) otherwise use the SmartForce Service in any manner that exceeds the scope of use permitted under Section 2.2 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Subscriber acknowledges and agrees that the SmartForce Service will not be used. and are not licensed for use, in connection with any of Subscriber's time - critical or mission -critical functions. 215999796 v4 1-1-2020 2.6 Availability of Subscriber Content. Subscriber will make available all Subscriber Content necessary or desired for SmartForce to provide the Services or make available the SmartForce Service. Subscriber will obtain all third -party licenses, consents and permissions needed for SmartForce to use the Subscriber Content to provide the Services or make available the SmartForce Service. 2.7 Support. During the Term, support provided to Subscriber shall comprise the following: (a) Help Desk. Authorized Users may send requests via SmartForce' help desk. (b) Error Corrections. SmartForce will use commercially reasonable efforts to correct all Errors reported by Subscriber in writing to SmartForce. SmartForce may not issue Error Corrections for all Errors. (c) Improvements. SmartForce may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that SmartForce then generally offers to other subscribers to the SmartForce Service. (d) Security. SmartForce will use commercially reasonable efforts to maintain the security of the SmartForce Service. 3. OWNERSHIP 3.1 SmartForce Technology. Subscriber acknowledges that SmartForce retains all right, title and interest in and to the SmartForce System, SmartForce Service and Documentation and all software and all SmartForce proprietary information and technology used by SmartForce or provided to Subscriber in connection with the SmartForce Service (the "SmartForce Technology"), and that the SmartForce Technology is protected by Intellectual Property Rights owned by or licensed to SmartForce. Other than as expressly set forth in this Agreement, no license or other rights in the SmartForce Technology are granted to Subscriber. 3.2 Feedback. Subscriber hereby grants to SmartForce a royalty -free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SmartForce Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SmartForce Service. SmartForce will not identify Subscriber as the source of any such feedback. 3.3 Subscriber Content. As between Subscriber and SmartForce, Subscriber will at all times remain the exclusive owner of such Subscriber Content Subscriber hereby grants to SmartForce a non- exclusive, worldwide, royalty -free and fully paid license (a) to use the Subscriber Content as necessary to provide the SmartForce Service to Subscriber and (b) to use aggregated and anonymized Subscriber Content (i) to improve the SmartForce Service and SmartForce's related product and service offerings; (ii) to create new products and services relating to the SmartForce Service (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the SmartForce Service, provided, however, that no Subscriber -only statistics will be disclosed to third panties without Subscriber's consent Except as expressly specified in this Agreement, Subscriber's provision of or SmartForce's collection of the Subscriber Content hereunder does not transfer to SmartForce or any third party any rights in or ownership thereof. 3.4 Third Party Software. The SmartForce Service may utilize, contain or otherwise use certain third -party software (collectively, the "Third Party Software"). Third Party Software may be subject to additional licensing terms, which SmartForce may deliver or make available from time to time to Subscriber, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement 4. PROFESSIONAL SERVICES. Where the parties have agreed to SmaetForce's provision of integration, design, development, operational and other professional services ("Professional Services"), they will enter into a mutually executed statement of work ("SOW") governing the provision of the initially required Professional Services. The SOW will 215999796 v4 1-0-2020 incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will govem. The SOW will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in SmartForce immediately); and (iv) SmartForce's then -current rates for the performance of the Professional Services. 5. FEES AND EXPENSES; PAYMENTS 5.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by SmarsForce under this Agreement, Subscriber will pay to SmartForce the Fees. Except as otherwise provided in the applicable Order Form, all fees am invoiced annually in advance. Subscriber shall pay such fees within thirty (30) days of receipt of an invoice. SmartForce shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. SmartForce may increase its fees annually upon written notice to Subscriber at least forty-five (45) days prior to expiration of the then - current term. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times. Interest will accrue on late payments at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.2 Taxes. All Fees invoiced under this Agreement are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on SmartForce's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the SmartForce Service to Subscriber. Subscriber will make all payments of Fees to SmartForce free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to SmartForce will be Subscriber's sole responsibility, and Subscriber will provide SmartForce with official receipts issued by the appropriate taxing authority, or such other evidence as the SmartForce may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend SmartForce in connection with any proceedings brought by any taxing authorities in connection with this Agreement. 5.3 Audit. During the term of this Agreement and for a period of three (3) years thereafter, SmartForce shall have the right to review Subscriber's relevant records and inspect Subscriber's facilities to ensure compliance with this Agreement. SmartForee will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber's normal operations. If any such audit should disclose any underpayment of fees, Subscriber will promptly pay SmartForce such underpaid amount, together with interest thereon at the rate specified in this Section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber will also pay SmartForce for SmartForce's expenses associated with such audit 6. SUBSCRIBER CONTENT AND RESPONSIBILITIES 6.1 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by SmartForce as part of the SmartForce Service shall not (a) infringe. misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. SmartForce is not obligated to back up arty Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber's sole cost and expense. Subscriber agrees that any use of the SmartForce Service contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the SmartForce Service. 6.2 Subscriber Responsibility for Data and Security. Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all User IDs and other Access Protocols required in order the access the SmartForce Service. Subscriber shall have the ability to export Subscriber Content out of the SmartForce Service and is encouraged to make its own back-ups of the Subscriber Content. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content. 7. WARRANTY AND DISCLAIMER 7.1 Limited Warranty. SmaoForce warrants to Subscriber that, when used as permitted by SmartForce and in accordance with the Documentation, the SmartForce Service will operate free from Errors during the Term. Provided that Subscriber notifies SmartForce in writing of any breach of the foregoing warranty during the Term, SmartForce shall, as its sole obligation and Subscriber's sole and exclusive remedy, provide the support set forth Section 2.7 of this Agreement. 7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION ARE PROVIDED AS IS," "AS AVAILABLE," AND WITH ALL FAULTS, AND SMARTFORCE AND ITS AFFILIATES. SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS. RELATING TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SMARTFORCE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SMARTFORCE SERVICE AND THE SMARTFORCE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR -FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. 8. LIMITATION OF LIABILITY 8.1 Types of Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SMARTFORCE NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SMARTFORCE SERVICE, THE SMARTFORCE SYSTEM OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SMARTFORCE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 8.2 Amount of Dam ages. THE MAXIMUM LIABILITY OF SMARTFORCE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SMARTFORCE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SMARTFORCE'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY 215999796 v4 I -I-20211 WAY CONNECTED AGREEMENT. ING M THS AGREEMENT SHALLTO LIMITTHIS OR EXCLUDENOTHSMARTFORCEIS LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SMARTFORCE OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER. 8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 9. CONFIDENTIALITY 9.1 Confidential Information. During the tern of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible fore as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the SmartForce Service, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of SmartForce. 9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third parry any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees or agents who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to SmartForce). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon the Disclosing Party's request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by applicable law, including Open Records, Public Information Acts and Freedom of Information laws, or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party season appropriate protective order. 10. INDEMNIFICATION 10.1 By SmartForce. SmartForce will defend at its expense any suit brought against Subscriber, and will pay any settlement SmartForce makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third parry alleging that the SmartForce Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. If any portion of the SmartForce Service becomes, or in SmartForce's opinion is likely to become, the subject of a claim of infringement, SmartForce may, at SmartForce's option: (a) procure for Subscriber the right to continue using the SmartForce System; (b) replace the SmartForce Services with non - infringing software or services which do not materially impair the functionality of the SmartForce Services; (c) modify the SmartForce Services so that it becomes non -infringing; or (d) terminate this Agreement and refund any Fees actually paid by Subscriber to SmartForce for the remainder of the Term then in effect, and upon such termination, Subscriber will immediately cease all use of the SmartForce Services. Notwithstanding the foregoing, SmartForce shall have no obligation under this section or otherwise with respect to any infringement claim based upon (e) any use of the SmartForce Service not in accordance with this Agreement or as specified in the Documentation; (t) any use of the SmartForce Service in combination with other products, equipment, software or data not supplied by SmartForce; or (g) any modification of the SmartForce by any person other than SmartForce or its authorized agents. This Section 10.1 states the sole and exclusive remedy of Subscriber and the entire liability of SmartForce, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions. 10.2 Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. 11. TERM AND TERMINATION 11.1 Term. This agreement commences on the date subscriber accepts this Agreement and automatically renews on January I of each year unless either party gives 90 days written notice of non - renewal or the agreement is otherwise terminated in accordance with the terms herein (the "Term)_ In the event Subscriber does not receive annual appropriation of funding from the relevant governmental entity(ies) as necessary to pay the applicable fees hereunder, Subscriber may terminate this Agreement upon thirty (30) days prior written notice; provided, that, Subscriber will provide SmartForce with any documentation reasonably requested by SmartForce to evidence the lack of appropriate funding. Any such termination shall become effective on the next anniversary of the Effective Date. 11.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 11.3 Effect of Termination. Upon termination or expiration of this Agreement for any mason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9.2; and (c) for one hundred twenty (120) days following after the effective date of termination, SmartForce will make available the Subscriber Content for export by Subscriber, after which time SmartForce shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The Sections titled Definitions, Restrictions, Ownership, Fees and Expenses; Payment, Warranty and Disclaimers, Limitation of 215999796 v4 1-1-2070 Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason. 12. MISCELLANEOUS 12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the law of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 12.2 Compliance with Laws. Subscriber shall at all times comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services hereunder, including, but not limited to those relating to open records requests. 12.3 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SmartForce, or any products utilizing such data, in violation of the United States export laws or regulations. 12.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 12.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 12.6 Remedies. Except as provided in Section 10, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Services and Documentation contain valuable trade secrets and proprietary information of SmartForce, that any actual or threatened breach by Subscriber of its obligations with respect to Intellectual Property Rights of SmartForce will constitute immediate, irreparable harm to SmartForce for which monetary damages would bean inadequate remedy. In such case, SmartForce will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Services, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. 12.7 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either parry may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. 12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. 12.9 Independent Contractors. Subscriber's relationship to SmartForce is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have and will not represent to any third party that it has, any authority to act on behalf of SmartForce. 12.10 Notices. Each party must deliver alt notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and retum receipt requested), or by a nationally -recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party. 12.11 Entire Agreement. This Agreement, together with the applicable Order Form, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such 215999796 e4 1-(-1020 subject matters. Any preprinted terms included in any purchase order that are different from or are in addition to the terms of this Agreement shall be void and of no force or effect. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and SmartForce. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of the Order Form will prevail, but only with respect to the Services to be performed under such Order Form (with the most recent prevailing over a previously executed Order Form). RESOLUTION RE: APPROVE ORDER FORM AND SERVICE SUBSCRIPTION AGREEMENT, AND AUTHORIZE CHAIR TO SIGN - SMARTFORCE TECHNOLOGIES, INC. WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Order Form and Service Subscription Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Sheriff's Office, and SmartForce Technologies, Inc., commencing upon full execution of signatures, with further terms and conditions being as stated in said order form and agreement, and WHEREAS, after review, the Board deems it advisable to approve said order form and agreement, copies of which are attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Order Form and Service Subscription Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Sheriff's Office, and SmartForce Technologies, Inc., be, and hereby are, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said order form and agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 29th day of June, A.D., 2022. BOARD OF COUNTY COMMISSIONERS WEL[ COUNW, COLORADO ATTEST: dayvt) G1 , ,,,,/ ;c1 Weld County Clerk to the Board Deputy Clerk to the Board APP' : VED AS County Att ey Date of signature: "1 112 ZZ Scott K. James, Chair cc: So(sK/st4) FS/1 5122 2022-1864 SO0043 C ivac,+1 94 (0CY(c BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Smart Force Software Contract DEPARTMENT: Weld County Sheriff's Office DATE: 6/21/2022 PERSON REQUESTING: Administration LT. Joshua Noonan, Sonja Kohlgraf, WCSO Budget Manager Brief description of the problem/issue: The Sheriff's Office budgeted for a software solution in 2022 that covers inventory tracking, training, and internal affairs. The company (Benchmark) failed to meet the requirements. The Sheriffs Office terminated the contract and received a refund. The Sheriffs Office found another company called Smart Force that does meet the needs of the Office. The Sheriff's Office is requesting the approval of a "bridge contract" with Smart Force through 12/31/2022 in the amount of $11,250, with the intent to sign an annual contract in 2023 for $22.500. Smart Force provided sole source documentation; however, the Sheriff's Office has sought out additional bids for comparison and recommends contracting with Smart Force because the company offers solutions covering our needs and at a lower price than contracting with multiple vendors. The Sheriffs Office is already a customer with Smart Force for a different software solution and we are satisfied with the services they have been providing. The WC attorney has approved the contract. IT has reviewed the solution and has no concerns. A software solution was already budgeted that covers the cost for the bridge contract. The bridge contract, to complete fiscal year 2022, is priced at $11,250.00 and the annual subscription costs $22,500.00 for 2023. What options exist for the Board? (include consequences, impacts, costs, etc. of options): 1. BOCC can reject the recommended contract. The Sheriff's Office will continue to seek software solutions that the BOCC will agree with. There are no cost impacts. Operation efficiencies will not improve. 2. The BOCC can request a work session. The Sheriff's Office and IT will attend the work session to provide additional explanation and answers. There are no consequences. 3. The BOCC can approve the bridge contract. There is no added cost to the County, other than budgeted, and needs of the Sheriffs Office would be met. This will improve the operational efficiencies. Recommendation: Approve the bridge contract covering 7/1-12/31/2022 with Smart Force to provide a software solution for inventory tracking, training, and internal affairs that meets the Sheriff's Office's need. The 2022 WCSO budget accounts for the cost, no additional funds needed for 2022. 2022-1864 o<OVI 30 06'l3 Approve , Schedule Recommendation Work Session Other/Comments: Perry L. Buck Mike Freeman, Pro-Tem Scott K. James, Chair Steve Moreno Lori Saine VuaEra Karla Ford From: Sent: To: Subject: Attachments: I approve Perry Buck Tuesday, June 21, 2022 2:39 PM Karla Ford Re: Please Reply - PA request for Smart Force software solution (bridge contract) image003.jpg; image001 jpg; image002.png; Weld County SO Revised Legal Contract - Jun 16 2022 - 2-16 PM.pdf; 6-21-2022 PA Smart Force Jul -Dec 2022 Contract.doc Sent from my iPhone On Jun 21, 2022, at 1:24 PM, Karla Ford <kford@weldgov.com>wrote: Please advise if you approve recommendation. Thank you. Karla Ford ix, Executive Assistant & Office Manager, Board of Weld County Commissioners 1150 0 Street, P.O. Box 758, Greeley, Colorado 80632 :: 970.336-7204 :: kford©weldgov.com :: www.weldqov.com **Please note my working hours are Monday -Thursday 7:00a.m.-5:00p.m.** Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Sonja Kohlgraf <skohlgraf@weldgov.com> Sent: Tuesday, June 21, 2022 8:09 AM To: Karla Ford <kford@weldgov.com> Subject: PA request for Smart Force software solution (bridge contract) Hello Karla, Please find the PA request for the Smart Force bridge contract attached. Thank you, Sonja Kohlgraf, MBA Budget Manager Weld County Sheriff's Office Ph: 970-400-2872 1 SMARTFORCE TECHNOLOGIES,INC. Check here if Renewal ORDER FORM This Order Form (the "Order Form") is by and between SmartForce Technologies, Inc. ("SmartForce") and the Subscriber identified below ("Subscriber"). THIS ORDER FORM IS ENTERED INTO PURSUANT TO AND SHALL BE GOVERNED BY THE THEN -CURRENT VERSION OF THE SMARTFORCE SERVICE SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT" AND, TOGETHER WITH THIS ORDER FORM, THE "AGREEMENT") ATTACHED WHICH ARE INCORPORATED HEREIN BY REFERENCE. All capitalized terms not defined herein have the meaning given to them in the Subscription Agreement. This Agreement will become effective when this Order Form is executed by authorized representatives of both parties (the "Effective Date"). In the event of any conflict between this Order Form and the Subscription Agreement. the terms set forth in this Order Form will prevail, but solely with respect to this Order Form. SUBSCRIBER INFORMATION: Name: Weld County Sheriff's Office Principal Contacts: Josh Noonan Full Address: 1950 O Street Greeley. CO 80631 Title: Lieutenant Phone: 970-400-2819 Mobile Phone: P.O. #: Email: ,jnoonan@weldgov.com Number of Users: Up to 500 Sworn 'Billing Contact & Email: Same Initial Term (standardly 1 year from date of execution) Software as a Service Module(s) SmartForce® SmartlA (Installed in Weld County M365 $20,000.00 Environment) SmartForce® SmartAdm in Module $15,000.00 Build, Training, Support, & Maintenance Included ..... _...... $35,000.00 Annual subscription discounts apply if signed order form is received by 7/20/2022. Total Subscription Fees: Annual Subscription Fee Discount $5,000.00 $15,000.00 $7,500.00 $7,500.00 NA Included $12,500.00 $22,500.00 Total Annual Subscription Fee 6 -Month Bridge Subscription Fee $7,500.00 $3.750.00 Included $11,250.00 Custom Development, Training, Implementation, and Other Services Description of Services Price NA NA a1�rn. >ri�,3rfi i -tom Pr. '.rt f :U3 ,�,G 5010 tfoic t:ch_com )0f; S .)debit `•t. 1 C'.. �.� .r ,r✓o., � �x�tictC�r?. , C� 6i1)11' c2oaa-/&, SMARTFORCE TECHN0L0GIES.INC. Payment Terms Initial Term Fees are due and payable in advance upon execution of the Order Form. Fees for Renewal Terms will be invoiced by SmartForce approximately 30 days before the start of the Renewal Term and are due and payable prior to the start of such Renewal Term. Fees for any Renewal Terms are subject to change. Agreement BY SIGNING BELOW, EACH PARTY AGREES TO BE BOUND BY THE TERMS OF THIS ORDER FORM AND THE SUBSCRIPTION AGREEMENT ATTACHED WHICH ARE INCORPORATED HEREIN BY REFERENCE. THE SUBSCRIPTION AGREEMENT CONTAINS (I) DISCLAIMERS OF WARRANTIES WITH RESPECT TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM, DOCUMENTATION AND SERVICES; (II) LIMITATIONS ON EACH PARTY'S LIABILITY; (III) INDEMNIFICATION OBLIGATIONS OF EACH PARTY; AND (IV) OTHER MATERIAL TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE. BY SIGNING BELOW. EACH PARTY REPRESENTS IT HAS READ AND AGREES TO BE BOUND BY THE ORDER FORM AND THE SUBSCRIPTION AGREEMENT. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBSCRIBER: We J I County Sheriff's Office By (Signature): Name(Printed): Scott K. James Chair, Board of Weld Title: Date: JUN 2 9 2022 County Commissioners SMARTFORCE TECHNOLOGIES, INC. By (Signature): Name (Printed): -54„,t,„) iut o6e0 Title: Date: 6 /leo /7-47-02. NtP 5trtES i4ther Ai ?,O3 -D;0-`:,0-10 �,) vrd:vr ,rri<+it,,aceteCh._r,i t I infn,u<t,i.,rt �,�c _�h.C.�, n 5,)0(.'i 2 6(11' 01.0 O1O2 SMARTFORCE TECHNOLOGIES, INC. SERVICE SUBSCRIPTION AGREEMENT IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. THE SMARTFORCE® SERVICE (AS DEFINED BELOW) IS PROVIDED TO SUBSCRIBER BY SMARTFORCE TECHNOLOGIES, INC. ("SMARTFORCE") SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE SUBSCRIPTION AGREEMENT ("AGREEMENT"). BY USING THE SMARTFORCE SERVICE, CLICKING ON THE "I ACCEPT' BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SMARTFORCE SERVICE, YOU: (1) AGREE TO THE TERMS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE SUBSCRIBER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SMARTFORCE SERVICE. THE TERM "SUBSCRIBER" MEANS THE ORGANIZATION TO WHICH THE SMARTFORCE SERVICE IS PROVIDED. EACH AND EVERY PERSON USING THE SMARTFORCE SERVICE ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON SUBSCRIBER'S BEHALF. IF SUBSCRIBER HAS ENTERED INTO A SIGNED HARDCOPY AGREEMENT REGARDING THE SUBJECT MATTER HEREOF WITH SMARTFORCE, THEN THAT SIGNED HARDCOPY AGREEMENT GOVERNS SUBSCRIBER'S USE OF THE SMARTFORCE SERVICE. 1. DEFINITIONS. As used in this Agreement: 1.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the SmartForce Service. 1.2 "SmartForce® Service" means the agency management system delivered by SmartForce to Subscriber using the SmartForce System. 1.3 "SmartForce System" means the technology, including software, used by SmartForce to deliver the SmartForce Service to Subscriber. 1.4 "Authorized User" means Subscriber's employees, representatives. consultants, contractors or agents who are authorized to use the SmartForce Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose. 1.5 "Documentation" means the technical materials provided or made available by SmartForce to Subscriber that describe the features, functionality or operation of the SmartForce System. 1.6 "Error" means a reproducible failure of the SmartForce Service to substantially conform to the Documentation. 1.7 "Error Corrections" means bug fixes or workarounds intended to correct Errors in the SmartForce Service. 1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 1.9 "Order Form" means an order form, executed by both parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the SmartForce Service and/or performance of the Services, and any unique additional terms. 1.10 "Services" means any services provided by SmartForce to Subscriber under this Agreement as set forth in an Order Form, including, but not limited to, provision of the SmartForce Service and Professional Services (as defined below). 1.11 "Subscriber Content" means any content provided, imported or uploaded to, or otherwise used by Subscriber or on Subscriber's behalf with the SmartForce Service or developed by or on behalf of Subscriber and used with the SmartForce Service. 2. PROVISION OF SERVICES 2.1 Orders. Subscriber may request that SmartForce provide the Services as specified in an Order Form. SmartForce will provide the Services in accordance with the applicable Order Form. 2.2 License Grant. Subject to the terms and conditions of this Agreement, SmartForce grants to Subscriber a non-exclusive, non- transferable, non-sublicensable license to, during the Term (as defined below), solely for Subscriber's internal business purposes and in accordance with the Documentation and the limitations set forth in Section 4.2 and the applicable Order Form, (a) access and use the SmartForce Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SmartForce Service. 2.3 Access. Subject to Subscriber's payment of the fees set forth in the applicable Order Form ("Fees"), and subject to any restriction set forth therein (e.g., a limit on the number of Authorized Users) SmartForce will provide Subscriber with access to the SmartForce Service during Term. SmartForce will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SmartForce Service in accordance with the Access Protocols. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SmartForce Service, and notify SmartForce promptly of any such unauthorized use known to Subscriber. 2.4 Authorized Users. Subscriber may permit any Authorized Users to access and use the features and functions of the SmartForce Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password ("User ID") for access to and use of the SmartForce Service. User IDs cannot be shared or used by more than one Authorized User at a time. 2.5 Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SmartForce Service to harvest, collect, gather or assemble information or data regarding other SmartForce subscribers without their consent; (b) access or copy any data or information of other SmartForce subscribers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the SmartForce Service or the data contained therein; (d) harass or interfere with another SmartForce subscriber's use and enjoyment of the SmartForce Service; (f) reverse engineer, disassemble or decompile any component of the SmartForce System; (g) interfere in any manner with the operation of the SmartForce Service, or the SmartForce System or the hardware and network used to operate the SmartForce Service; (h) sublicense any of Subscriber's rights under this Agreement, or otherwise use the SmartForce Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the SmartForce Service; (j) access or use the SmartForce Service or Services to build a similar or competitive product or service or attempt to access the SmartForce Service through any unapproved interface; or (k) otherwise use the SmartForce Service in any manner that exceeds the scope of use permitted under Section 2.2 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Subscriber acknowledges and agrees that the SmartForce Service will not be used. and are not licensed for use, in connection with any of Subscriber's time - critical or mission -critical functions. 215999796 v4 /-1-2020 2.6 Availability of Subscriber Content. Subscriber will make available all Subscriber Content necessary or desired for SmartForce to provide the Services or make available the SmartForce Service. Subscriber will obtain all third -party licenses, consents and permissions needed for SmartForce to use the Subscriber Content to provide the Services or make available the SmartForce Service. 2.7 Support. During the Term, support provided to Subscriber shall comprise the following: (a) Help Desk. Authorized Users may send requests via SmartForce' help desk. (b) Error Corrections. SmartForce will use commercially reasonable efforts to correct all Errors reported by Subscriber in writing to SmartForce. SmartForce may not issue Error Corrections for all Errors. (c) Improvements. SmartForce may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that SmartForce then generally offers to other subscribers to the SmartForce Service. (d) Security. SmartForce will use commercially reasonable efforts to maintain the security of the SmartForce Service. 3. OWNERSHIP 3.1 SmartForce Technology. Subscriber acknowledges that SmartForce retains all right, title and interest in and to the SmartForce System, SmartForce Service and Documentation and all software and all SmartForce proprietary information and technology used by SmartForce or provided to Subscriber in connection with the SmartForce Service (the "SmartForce Technology"), and that the SmartForce Technology is protected by Intellectual Property Rights owned by or licensed to SmartForce. Other than as expressly set forth in this Agreement, no license or other rights in the SmartForce Technology are granted to Subscriber. 3.2 Feedback. Subscriber hereby grants to SmartForce a royalty -free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SmartForce Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SmartForce Service. SmartForce will not identify Subscriber as the source of any such feedback. 3.3 Subscriber Content. As between Subscriber and SmartForce, Subscriber will at all times remain the exclusive owner of such Subscriber Content. Subscriber hereby grants to SmartForce a non- exclusive, worldwide, royalty -free and fully paid license (a) to use the Subscriber Content as necessary to provide the SmartForce Service to Subscriber and (b) to use aggregated and anonymized Subscriber Content (i) to improve the SmartForce Service and SmartForce's related product and service offerings; (ii) to create new products and services relating to the SmartForce Service (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the SmartForce Service, provided, however, that no Subscriber -only statistics will be disclosed to third parties without Subscriber's consent. Except as expressly specified in this Agreement, Subscriber's provision of or SmartForce's collection of the Subscriber Content hereunder does not transfer to SmartForce or any third party any rights in or ownership thereof. 3.4 Third Party Software. The SmartForce Service may utilize, contain or otherwise use certain third -party software (collectively, the "Third Party Software"). Third Party Software may be subject to additional licensing terms, which SmartForce may deliver or make available from time to time to Subscriber, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement. 4. PROFESSIONAL SERVICES. Where the parties have agreed to SmartForce's provision of integration, design, development, operational and other professional services ("Professional Services"), they will enter into a mutually executed statement of work ("SOW") governing the provision of the initially required Professional Services. The SOW will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern. The SOW will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in SmartForce immediately); and (iv) SmartForce's then -current rates for the performance of the Professional Services. 5. FEES AND EXPENSES; PAYMENTS 5.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by SmartForce under this Agreement, Subscriber will pay to SmartForce the Fees. Except as otherwise provided in the applicable Order Form, all fees are invoiced annually in advance. Subscriber shall pay such fees within thirty (30) days of receipt of an invoice. SmartForce shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. SmartForce may increase its fees annually upon written notice to Subscriber at least forty-five (45) days prior to expiration of the then - current term. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times. Interest will accrue on late payments at one and one-half percent (I.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.2 Taxes. All Fees invoiced under this Agreement are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on SmartForce's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the SmartForce Service to Subscriber. Subscriber will make all payments of Fees to SmartForce free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to SmartForce will be Subscriber's sole responsibility, and Subscriber will provide SmartForce with official receipts issued by the appropriate taxing authority, or such other evidence as the SmartForce may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend SmartForce in connection with any proceedings brought by any taxing authorities in connection with this Agreement. 5.3 Audit. During the term of this Agreement and for a period of three (3) years thereafter, SmartForce shall have the right to review Subscriber's relevant records and inspect Subscriber's facilities to ensure compliance with this Agreement. SmartForce will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber's normal operations. If any such audit should disclose any underpayment of fees, Subscriber will promptly pay SmartForce such underpaid amount, together with interest thereon at the rate specified in this Section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber will also pay SmartForce for SmartForce's expenses associated with such audit. 6. SUBSCRIBER CONTENT AND RESPONSIBILITIES 6.1 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by SmartForce as part of the SmartForce Service shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. SmartForce is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber's sole cost and expense. Subscriber agrees that any use of the SmartForce Service 215999796 v4 I -I-2020 contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the SmartForce Service. 6.2 Subscriber Responsibility for Data and Security. Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all User IDs and other Access Protocols required in order the access the SmartForce Service. Subscriber shall have the ability to export Subscriber Content out of the SmartForce Service and is encouraged to make its own back-ups of the Subscriber Content. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content. 7. WARRANTY AND DISCLAIMER 7.1 Limited Warranty. SmartForce warrants to Subscriber that, when used as permitted by SmartForce and in accordance with the Documentation, the SmartForce Service will operate free from Errors during the Term. Provided that Subscriber notifies SmartForce in writing of any breach of the foregoing warranty during the Term, SmartForce shall, as its sole obligation and Subscriber's sole and exclusive remedy, provide the support set forth Section 2.7 of this Agreement. 7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION ARE PROVIDED AS IS," "AS AVAILABLE," AND WITH ALL FAULTS, AND SMARTFORCE AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES. REPRESENTATIONS, OR CONDITIONS. RELATING TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SMARTFORCE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SMARTFORCE SERVICE AND THE SMARTFORCE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR -FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. 8. LIMITATION OF LIABILITY 8.1 Types of Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SMARTFORCE NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SMARTFORCE SERVICE, THE SMARTFORCE SYSTEM OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SMARTFORCE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 8.2 Amount of Damages. THE MAXIMUM LIABILITY OF SMARTFORCE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SMARTFORCE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SMARTFORCE'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SMARTFORCE'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SMARTFORCE OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER. 8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 9. CONFIDENTIALITY 9.1 Confidential Information. During the term of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the SmartForce Service, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of SmartForce. 9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees or agents who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to SmartForce). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon the Disclosing Party's request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by applicable law, including Open Records, Public Information Acts and Freedom of Information laws, or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with • 215999796 v4 1-1-2020 the Disclosing Party if the Disclosing Party seeks an appropriate protective order. 10. INDEMNIFICATION 10.1 By SmartForce. SmartForce will defend at its expense any suit brought against Subscriber, and will pay any settlement SmartForce makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the SmartForce Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. If any portion of the SmartForce Service becomes, or in SmartForce's opinion is likely to become, the subject of a claim of infringement, SmartForce may, at SmartForce's option: (a) procure for Subscriber the right to continue using the SmartForce System; (b) replace the SmartForce Services with non - infringing software or services which do not materially impair the functionality of the SmartForce Services; (c) modify the SmartForce Services so that it becomes non -infringing; or (d) terminate this Agreement and refund any Fees actually paid by Subscriber to SmartForce for the remainder of the Term then in effect, and upon such termination, Subscriber will immediately cease all use of the SmartForce Services. Notwithstanding the foregoing, SmartForce shall have no obligation under this section or otherwise with respect to any infringement claim based upon (e) any use of the SmartForce Service not in accordance with this Agreement or as specified in the Documentation; (f) any use of the SmartForce Service in combination with other products, equipment, software or data not supplied by SmartForce; or (g) any modification of the SmartForce by any person other than SmartForce or its authorized agents. This Section 10.1 states the sole and exclusive remedy of Subscriber and the entire liability of SmartForce, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions. 10.2 Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. 11. TERM AND TERMINATION 11.1 Term. This agreement commences on the date subscriber accepts this Agreement and automatically renews on January 1 of each year unless either party gives 90 days written notice of non - renewal or the agreement is otherwise terminated in accordance with the terms herein (the "Term). In the event Subscriber does not receive annual appropriation of funding from the relevant governmental entity(ies) as necessary to pay the applicable fees hereunder, Subscriber may terminate this Agreement upon thirty (30) days prior written notice; provided, that, Subscriber will provide SmartForce with any documentation reasonably requested by SmartForce to evidence the lack of appropriate funding. Any such termination shall become effective on the next anniversary of the Effective Date. 11.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9.2; and (c) for one hundred twenty (120) days following after the effective date of termination, SmartForce will make available the Subscriber Content for export by Subscriber, after which time SmartForce shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The Sections titled Definitions, Restrictions, Ownership, Fees and Expenses; Payment, Warranty and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason. 12. MISCELLANEOUS 12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the law of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 12.2 Compliance with Laws. Subscriber shall at all times comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services hereunder, including, but not limited to those relating to open records requests. 12.3 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SmartForce, or any products utilizing such data, in violation of the United States export laws or regulations. 12.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 12.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 12.6 Remedies. Except as provided in Section 10, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Services and Documentation contain valuable trade secrets and proprietary information of SmartForce, that any actual or threatened breach by Subscriber of its obligations with respect to Intellectual Property Rights of SmartForce will constitute immediate, irreparable harm to SmartForce for which monetary damages would be an inadequate remedy. In such case, SmartForce will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Services, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. 12.7 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. 12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. 12.9 Independent Contractors. Subscriber's relationship to SmartForce is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have and will not represent to any third party that it has, any authority to act on behalf of SmartForce. 12.10 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally -recognized express mail service. Notice will be effective 215999796 v4 1-1-2020 upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party. 12.11 Entire Agreement. This Agreement, together with the applicable Order Form, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Any preprinted terms included in any purchase order that are different from or are in addition to the terms of this Agreement shall be void and of no force or effect. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and SmartForce. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of the Order Form will prevail, but only with respect to the Services to be performed under such Order Form (with the most recent prevailing over a previously executed Order Form). 215999796 v4 1-1-2020 Contract Form Entity Information New Contract Request Entity Name* SMARTFORCE TECHNOLOGIES INC Entity ID* .W00045716 ❑ New Entity? Contract Name* Contract ID 2022 SMARTFORCE CONTRACT FOR PROFESSIONAL 6046 STANDARDS COVERING 7;1 22-12;31:2022 Contract Status CTB REVIEW Contract Lead* JNOONAN Contract Lead Email inoonanWco.weld.co.us. skohlgrafA+eIdgov.com Parent Contract ID Requires Board Approval YES Department Project # Contract Description* THIS SERVICE COVERS QUARTERMASTER INVENTORY TRACKING, PROF STANDARDS TRAINING AND INTERNAL AFFAIRS. FUTURE CONTRACT PERIOD WILL BE JAN -DEC Contract Description 2 Contract Type CONTRACT Amount* $11,250.00 Renewable* YES Automatic Renewal NO Grant NO IGA NO Department SHERIFF Department Email CM-Sheriffwveldgov.com Department Head Email CM-Sheriff- DeptHeadveldgov.com County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYA I I ORNEY]WELDG OV.COM Requested BOCC Agenda Date* 06.29x'2022 Due Date 06x'25(2022 Will a work session with BOCC be required? NO Does Contract require Purchasing Dept. to be included? NO IIf this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in On Base Contract Dates Effective Date 07;01;2022 Review Date * 10`0].2022 Renewal Date* 12 31,'2022 Termination Notice Period Committed Delivery Date Expiration Date Contact Information Contact Info Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head DONNIE PATCH DH Approved Date 06'22,2022 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 06;2912022 Originator SKOHLGRAF Finance Approver CHERYL PATTELLI Legal Counsel BRUCE BARKER Finance Approved Date Legal Counsel Approved Date 06;2312022 06 23 2022 Tyler Ref # AG 062922 Hello