SOFTWARE SERVICES AGREEMENT BETWEEN EXPLORELEARNING, LLC AND POUDRE SCHOOL DISTRICT R-1
This Software Services Agreement is entered into this 7th day of July 2020, by and between Poudre School District R- ExploreLearning, LLC
( Contractor The District and the Contractor are collectively referenced herein as the In consideration of the mutual covenants and promises contained in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Term of Agreement.
1.1. This Agreement shall commence on August 1, 2020 and continue through and including July 31, 2021, unless earlier terminated as provided herein.
1.2. Notwithstanding any other term or provision of this Agreement, the sufficient funds for each fiscal year (July 1 - June 30) an Agreement is in effect. In no event,
-fiscal year direct or indirect
debt or other financial obligation under Article X, Section 20(4)(b) of the Colorado Constitution.
1.3. Termination For Cause. Notwithstanding the provisions of section 1.2 above, if either party is in breach of an obligation or covenant under this Agreement the non- breaching party may give written notice to the breaching party describing the breach and demanding that it be cured. If the breach is not cured within seven (7) days after the breaching
-breaching party may immediately terminate the Agreement and avail itself of any and all remedies available at law or in equity.
1.4. Termination Without Cause. Notwithstanding the provisions of sections 1.1, 1.2 and 1.3 above, the District or the Contractor may terminate this Agreement at any time in its sole discretion for any reason, with or without cause, by giving the other party thirty (30)
2. Deliverables and Purchase Price.
2.1. The Contractor shall make its Gizmos web-based interactive math and science simulations available for use in the District , which shall include access to all Gizmos, upgrades, remote access and subscriber support (hereinafter the
2.2. The total cost for the Services as set forth on the attached Exhibit A Twenty-Four Thousand and Seven Hundred and Fifty Dollars ($24,750.00), due and payable by the District thirty (30) days after .
2.3. Extension of services may not occur beyond July 31, 2021 without the renewal of an Agreement and issuance of District purchase order.
2.4. Additional District schools may participate in Services under all terms and conditions specified within this Agreement. This Agreement in no way binds the District or District Schools to exclusive use of Contra Services is under the direction of each District School Principal or Principal designee. District Principals or Principal designee will adhere to applicable laws, regulations, and District policies.
2.5. Fulfillment of Services under the terms and conditions set forth in this Agreement shall be exclusively through the issuance of a District purchase order.
2.5.1. Site-based credit cards and/or site-based restricted checks shall not be permitted for payment, unless approved by the District contact listed in section 9.
2.5.2. Services provided by Contractor without conforming to section 2.5 of the Agreement shall be considered unauthorized and payment shall not be issued by the District.
2.6. Contractor shall assure compliance with the District Policy DJG/DJGA, attached as Exhibit B and hereby made part of this Agreement, direct communication with schools or sales must be approved by contact in section 9 of this agreement.
2.7. The District understands and agrees that its access to and use of the Services under this Agreement requires that it disclose confidential student records and information, as that term is defined below, to the Contractor. The Contractor understands and agrees that if it fails to comply with any of the requirements under sections 4, 5, 6 or 7 below at any time during or after the term of this Agreement the District may, as applicable, terminate the Agreement and/or disqualify the Contractor from future agreements with the District.
3.1. As used in this Agreement defined as information (including metadata) that, alone or in combination, is linked or linkable to a specific student so as to allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty. Personally identifiable information in
name; (b c) the address or phone
number of the student or
security number, student number or biometric record; and (e) indirect identifiers such as the
3.2. As used in this Agreeme documents and other materials that: (a) contain information directly related to a student; and (b) are maintained by the District, or by a party acting for the District such as the Contractor.
3.3. As used is defined as education records and personally identifiable information concerning District students, including but not limited to confidential student records and information disclosed to,
collected by and/or generated by the Contractor. Confidential student records and information
-identified confidential student records and infor
section 3.5 below.
3.4. as the gathering of data
and other information by any means, including but not limited to the use of logs, cookies, tracking pixels, etc.
3.5. -identified confidential student records and udent records and information from which all personally
identifiable information, and the ability to determine any personally identifiable information, is removed.
As used in this Agreement,
confidential student r -
copy and electronic records, databases and any other media regardless of format, in accordance
800-88 Guidelines for Media Sanitization, so that the confidential student records and
is at least 18 years of age or who is legally emancipated.
4. O wnership of Confidential Student Records and Information. All
confidential student records and information shall remain the exclusive property of the District and all rights, title and interest in the confidential student records and information, including but not limited to intellectual property rights in the confidential student records and information, belong to and are retained solely by the District. The District hereby grants to the Contractor a limited, nonexclusive license to access, view, collect, generate and use confidential student records and information solely for the purpose of performing its obligations under this Agreement.
5. Security of Confidential Student Records and Information.
5.1. The Contractor shall store and process confidential student records and information in accordance with commercial best practices, including implementing appropriate administrative, physical and technical safeguards that are no less rigorous than those outlined in SANS Top 20 Security Controls, as amended, to secure such confidential student records and information from unauthorized access, disclosure, alteration and use. The Contractor shall ensure that all such safeguards, including the manner in which confidential student records and information is collected, accessed, used, stored, processed, disposed of and disclosed, comply with all applicable federal and state data protection and privacy laws, regulations and directives, including but n Student Data Transparency and Security Act, C.R.S. §§ 00-00-000 to -112. Without limiting the foregoing, and unless expressly agreed to the contrary in writing, the Contractor warrants that all electronic confidential student records and
information will be encrypted in transmission and at rest in accordance with NIST Special Publication 800-57, as amended.
5.2. The Contractor shall conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner. The Contractor shall promptly notify the District in the event of: (a) any security or privacy breach concerning confidential student records and information; and/or (b) any use or disclosure of student personally identifiable information not authorized under this Agreement.
6. U se of Confidential Student Records and Information.
6.1. Under the Agreement, Contractor may access, view, collect, generate and/or use confidential student records and information only under the following terms and conditions: (a) Contractor shall not disclose confidential student records and information, in whole or in part, to any other party; (b) Contractor shall not use any confidential student records or information to advertise or market to students or their parents/guardians; (c) Contractor shall access, view, collect, generate and use confidential student records and information only to the extent necessary to perform its obligations under the Agreement; and (d) at the conclusion of the term of the Agreement Contractor shall, as directed by the District, either securely destroy all confidential student records and information in its possession, custody or control, or return such confidential student records and information to the District.
6.2. Contractor may use de-identified confidential student records and information for purposes of research, the improvement of its products and services, and/or the development of new products and services. In no event shall Contractor re-identify or attempt to re-identify any de-identified confidential student records and information.
6.3. Contractor shall promptly furnish to the District upon request all confidential student records and information collected and/or generated by Contractor and not in
in order to respond to parent/guardian and eligible student requests to inspect and review education records as authorized under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g
§§ 24-72-200.1 to -206
Contractor, shall respond to all parent/guardian and eligible student requests to inspect and review records, data and other information.
7. School Service Contract Provider. If Contractor ice contract
Contract is amended to add the language in this section 7
lorado Department of Education, a K-
12 public education entity or an institution of higher education) that enters into a formal,
et website, online service, online application or mobile application that: (a) is designed and marketed primarily for use in a preschool, elementary school or secondary school; (b) is used at the direction of District teachers or other District employees; and
(c) collects, maintains or uses confidential student records and information.
7.1. As a school service contract provider under the Act, the Contractor has provided to the District has provided the following information in the attached Exhibit C: (a) the data elements of confidential student records and information that Contractor collects under the Agreement, regardless of whether the data elements are initially collected or ultimately held individually or in the aggregate using protocols that are effective for preserving the anonymity of each student included in the data; (b) the learning purpose for which Contractor collects the confidential student records and information; and (c) how the Contractor uses and shares the confidential student records and information. Contractor shall update this information as necessary to maintain accuracy.
7.2. Contractor factually inaccurate confidential student records and information as required in response to correction requests from parents/guardians and eligible students.
8. R emedies. If Contractor fails to comply with any of the foregoing requirements
at any time during or after the term of the Contract the District may, as applicable, terminate the Contract and/or disqualify Contractor from future contracts and subcontracts with the District.
9. N otices and Communications. All notices and communications required or
permitted under this Agreement shall be in writing and shall be: (a) sent via certified mail, return receipt requested and postage prepaid, to the address of the other party set forth below; or (b) sent via e-mail to the other party via the e-mail address set forth below.
Xxxxxx Xxxxxx Xxxxxxxx X-0 Attn: Xxxxx Xxxxxxx
0000 XxXxxxx Xxxxxx Xxxx Xxxxxxx, XX 00000
ExploreLearning, LLC Attn: Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxxxxx, XX 00000
10. General Provisions.
10.1. No Assignment. The Contractor shall not assign this Agreement or any of its rights, interests or obligations under this Agreement without the prior written consent of the District, which consent may be withheld for any reason or no reason as determined by the District in its sole discretion.
10.2. No Waiver. The parties agree that no assent or waiver, express or implied, to any breach of any one or more of the covenants of this Agreement shall be construed as or deemed to be an assent to or a waiver of any subsequent breach.
10.3. Conflict of Terms. In the event of any conflict of terms found between this Agreement or any other terms and conditions, end user license agreements or privacy policies, the terms of this Agreement shall prevail.
10.4. Amendment or Modification. No amendment or modification of this Agreement shall be valid unless set forth in writing and executed by the District and the Contractor in the same manner and with the same formality as was done for this Agreement.
10.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado.
10.6. Insurance. Contractor shall procure and maintain the required insurance specified below for the duration of this Agreement, which insurance shall be written for not less than the amounts specified or greater if required by law. Specified coverages and amounts may be provided by a combination of a primary policy plus an umbrella or following form excess policy. If not otherwise required by law, lower amounts may be acceptable upon review and
All insurance shall be with a carrier licensed in the state of Colorado and shall have a minimum A.M. Best rating of
A- VII. Contractor
Agreement, and with renewal certificates prior to the expiration of any required insurance that expires during the term of this Agreement. Certificates of Insurance and all communication regarding insurance shall be sent to:
Poudre School District Attention: Risk Management Email: email@example.com 0000 Xxxxxxx Xxx
Xx. Xxxxxxx, XX 00000
Any insurance and/or self-insurance carried by the District is excess of the coverage extended to the District by Contractor. Contractor notice to the District prior to cancellation, change of coverage, or non-renewal. The insurance requirements specified in this section 10.6 shall not reduce the indemnification liability
that Contractor has assumed in section 10.7.
Commercial General Liability
a. Each Occurrence Bodily Injury &
b. Personal/Advertising Injury
c. Products/Completed Operations Aggregate
d. General Aggregate
f. Poudre School District R-1 and its elected officials, employees, agents, and volunteers shall be named as an additional insured and shall be insured to the full limits of liability purchased by the Provider even if those limits of liability are in excess of those required by this Agreement.
T echnology Errors & Omissions Liability including Network Security and Privacy
a. Per Loss $1,000,000
b. Aggregate Limit $3,000,000
c. Liability extends for a period of three (3) years beginning at the time work under this Agreement is completed. Provider shall maintain continuous coverage, as required by the Agreement, for this period.
The insurance shall provide coverage for:
a. Liability arising from theft, dissemination and/or use of confidential information (defined term including but not limited to bank account, credit card account, personal information such as name, address, social security numbers, etc. information) stored or transmitted in electronic form.
b. Network Security Liability arising from the unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to services including denial of service, unless caused by a mechanical or electrical failure.
c. Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a similar computer related property and the data, software, and programs thereon.
10.7. Indemnification. The Contractor shall indemnify and hold harmless the District and the District's Board members, employees, representatives and agents from and against any and all liability arising from any suit, action, grievance, charge or proceeding brought in connection with or related to: (a) the C ; (b) provision of the Services
copyright; and/or (d) the conduct of any of the employees, volunteers, agents or representatives. The indemnification and hold harmless obligation hereunder shall include all
employees, representatives and/or agents in defense of said suits, actions, grievances, charges and/or proceedings. Nothing in this section 10.7 or otherwise in this Agreement shall be construed
rights and protections under the Colorado Constitution or the Colorado Governmental Immunity Act.
10.8. No Third-Party Beneficiary. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the District and the Contractor. Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any third person other than the District or the Contractor. It is the express intent of the parties that any third person receiving services or benefits pursuant to this Agreement shall be deemed an incidental beneficiary only.
10.9. Attorney Fees and Costs. In the event it becomes necessary for either party to institute litigation or mutually agreed-upon arbitration proceedings to enforce any provision of this Agreement, the substantially prevailing party in such litigation or arbitration shall receive, as part of any judgment or award entered, its reasonable attorney fees and costs, including expert witness fees.
10.10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors and permitted assigns.
10.11. Headings. The headings used in this Agreement are for convenience only and shall have no effect upon the construction or interpretation of this Agreement.
10.12. E ntire Agreement. This Agreement constitutes the entire agreement of the parties regarding the subject matter addressed herein and supersedes all prior agreements, whether oral or written, pertaining to said subject matter.
10.13. S ignatures. This Agreement may be executed and delivered via portable document format (pdf), and the pdf signature of any party shall be considered valid, binding, effective and an original for all purposes.
10.14. W arranty of Authority. The individuals signing below represent and warrant that they have the authority to execute this Agreement on behalf of their respective organizations and bind their respective organizations to the terms of this Agreement.
IN WITNESS WHEREOF, the District and the Contractor have signed this Agreement as of the date first set forth above.
Xxxxx Given VP, Finance
POUDRE SCHOOL DISTRICT R-1
R. Xxxxx Xxxxxxx
Executive Director of Finance
By:_ Xxxx Canine
Director of Professional Development
ExploreLearning Preliminary Proposal
For: POUDRE SCHOOL DISTRICT R-1
Presented to: Xxxxx Xxxxxxx, Science, Health, and PE Curriculum Facilitator By: Xxxxxx Xxxxxxx
Presented on: July 7, 2020
Proposal Expires on: August 31, 2020
Gizmos Professional Development - Two (2) onsite training days (up to 6 hours per day) for up to 25 participants.
District Gizmos Department License for Science teachers only. Priced per student.
Dates of Service: August 1, 2020 to July 31, 2021 Total: $24,750.00
3 YEARS = 15% OFF
2 YEARS = 10% OFF
Prices contained herein do not include applicable state and local sales taxes. Sales tax may be adjusted at the time of invoicing. Pricing information made herein is strictly confidential and is supplied on the understanding that it will be held confidential and not disclosed to third parties without the prior written consent of ExploreLearning.
Please contact Xxxxxx Xxxxxxx at 000-000-0000, ext. 358 or firstname.lastname@example.org for more information on any aspect of this proposal (#Q-108111).
If applicable, please include your certificate of tax-exempt status with your purchase order. Purchase Orders may be sent to ExploreLearning Orders via one of the following methods:
Email to: email@example.com
Fax to: 000-000-0000
Mail to: 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxxxxx, XX 00000
ExploreLearning Preliminary Proposal
To ensure the effective implementation of ExploreLearning products in your school or district, please provide us with the following:
Who is the primary contact to coordinate professional development for your school or district? Please provide the following for that contact:
Provide us some details for your workshop(s):
# of Teachers:
# of Teachers who are new to the product:
# of Teachers who are experienced with the product:
Please provide a description of the types of technology your teachers and students will be using to implement ExploreLearning products: Technology / Devices:
Your implementation manager will be in touch with your PD contact via email to schedule your professional development workshop(s). We look forward to working with your teachers!
Professional development workshops are only scheduled for dates after the start of your subscription.
DJG/DJGA - VENDOR RELATIONS, SALES CALLS AND DEMONSTRATIONS
No favoritism shall be extended to any vendor. The Purchasing and Materials Management Department, in cooperation with other interested District departments, sites and employees, may establish required vendor qualifications for certain District purchases, and may prequalify vendors, as they determine necessary or appropriate.
CONFLICT OF INTEREST
District employees have a fiduciary duty to act in the best interests of the District regarding all work they perform in connection with any District contract or purchase. No vendor shall offer, and no District employee shall accept, any gift, service, honorarium, stipend or fee that may objectively be viewed as having the purpose or effect of improperly influencing the employee to purchase goods and/or services from the vendor. No District employee may have a financial or business interest in any District contract or purchase made by the employee in his or her official capacity, and no District employee may influence or attempt to influence the District regarding any contract or purchase in which the employee has a financial or business interest.
To protect District students and staff against disruption of the educational process and/or interruption of the work day, sales representatives shall not be permitted in District schools for the purpose of making sales calls unless authorized to do so by the superintendent, executive director of finance or purchasing and materials manager, or their designees.
The superintendent, executive director of finance or purchasing and materials manager may, when they determine it to be in the best interest of the District, bar any vendor, organization or person from any or all District facilities for soliciting purchases from or services to students, their parents/guardians, or District employees.
Employees who violate any provision of this policy shall be subject to discipline up to and including termination of employment. Any vendor engaging in conduct that is inconsistent with this policy may be disqualified indefinitely from doing business with the District.
Adopted by Board: May 1972 Revised by Board: May 1982
Revised by Board: April 1988
Revised by Board to conform with practice: May 22, 1995 Revised by Board: April 8, 1996
Revised by Board: June 10, 1996
Revised by Superintendent: May 14, 2007
Revised by Superintendent: March 8, 2017
Revised by Board: February 12, 2019
C.R.S. 00-00-000, et seq.
DJA, Purchasing Authority DJB, Purchasing Procedures
FE, Construction Projects and Contracting Procedures FEAA, Construction Project Prequalification
GBEA, Staff Ethics/Conflict of Interest GBEBC, Gifts to and Solicitations by Staff