SOFTWARE SERVICES AGREEMENT BETWEEN SMARTEST EDU, INC DBA FORMATIVE
AND POUDRE SCHOOL DISTRICT R-1
This Software Services Agreement is effective as of the 30th day of July 2020, by and between Poudre School District R- Smartest EDU, INC dba Formative ( Contractor The District and the Contractor are collectively referenced herein as 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. T erm of Agreement.
1.1. This Agreement shall commence on August 1, 2020 and continue through and including July 31, 2021.
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,
tions in an Agreement constitute a multiple-fiscal year direct or indirect
debt or other financial obligation under Article X, Section 20(4)(b) of the Colorado Constitution.
1.3. Notwithstanding the planned term of an Agreement and/or any extensions thereof as provided in section 1.1 and 1.2 above, the District may terminate an Agreement at any time in its sole discretion for any reason, with or without cause, upon written notice served on the Contractor no less than thirty (30) days prior to the date of termination. In the event of such early termination by the District, the Contractor shall be paid up to the date of termination for services performed under and in accordance with this Agreement.
2. Deliverables and Purchase Price.
2.1. The Contractor shall make its formative teaching and assessment solution used for acting on live student responses and tracking student growth over-time to standard for
schools, in accordance with the scope of work set forth in the attached
Exhibit A (
2.2. The total cost for Services, as set forth on the attached Exhibit A is
Sixteen Thousand, Three Hundred and Ninety-Nine Dollars and Zero Cents ($16,399.00), due
2.3. 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.
2.4. Fulfillment of Services under the terms and conditions set forth in this Agreement shall be exclusively through the issuance of a District purchase order.
2.4.1. 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. 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.
2.6. The Contractor grants the District a non-exclusive, non-transferable, non- sublicenseable license to access and use, and permit authorized users to access and use the Services solely in the United States during the term of the Agreement.
2.7. The District shall access and use the Services solely for non-commercial instructional and administrative purposes within the District. Further, the District shall not, except as expressly authorized or directed by the Contractor: (a) copy, modify, translate, distribute, disclose or create derivative works based on the contents of, or sell, the Services, or any part thereof; (b) decompile, disassemble or otherwise reverse engineer Services or otherwise use the Services to develop functionally similar products or services; (c) modify, alter or delete any of the copyright, trademark, or other proprietary notices in or on the Services; (d) rent, lease or lend the Services or use the Services for the benefit of any third party; (e) avoid, circumvent or disable any security or digital rights management device, procedure, protocol or mechanism in the Services; or (f) permit any authorized user or third party to do any of the foregoing. The District also agrees that any works created in violation of this section 2.7 are derivative works, and, as such, the District agrees to assign, and hereby assigns, all right, title and interest therein to the Contractor.
2.8. The District agrees, subject to the limited rights expressly granted hereunder, that all rights, title and interest in and to all Services, including all related IP Rights, are and shall remain the sole and exclusive property of Contractor or its third-
any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide. The District shall notify Contractor of any violation o Services, and shall reasonably assist Contractor as necessary to remedy any such violation.
Contractor Services are protected by patents.
2.9. The District understands and agrees that its access to and use of the Contra web-based system 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
security number, student number or biometric record; and (e) indirect identifiers such as the
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.
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 u and other information by any means, including but not limited to the use of logs, cookies, tracking pixels, etc.
-identified confidential student records and
identifiable information, and the ability to determine any personally identifiable information, is removed.
3.6. As used in this Agreement,
defined as removing
copy and electronic records, databases and any other media regardless of format, in accordance with the standard detailed in the National Inst 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 CIS 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 Student Data Transparency and Security Act, C.R.S. §§ 00-00-000 et seq. 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) except as provided in section 6.2 below, 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 the Contractor shall, as directed in writing by the District, initiate the process to 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 to the extent necessary to perform its obligations under the Agreement disclose confidential student records and information to subcontractors as identified in Exhibit A s pursuant to written subcontracts specifying the purpose of the disclosure and providing that: (a) Subcontractors shall not disclose confidential student records and information, in whole or in part, to any other party; (b) Subcontractors shall not use any confidential student records or information to advertise or market to students or their parents/guardians; (c) Subcontractors shall access, view, collect, generate and use confidential student records and information only to the extent necessary to assist Contractor in performing its obligations under the Agreement; and (d) at the conclusion of their work under their subcontracts Subcontractors shall, as directed by the District through the Contractor, either securely destroy all confidential student records and information in their possession, custody or control, or return such confidential student records and information to the District.
6.3. Contractor and Subcontractors 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 the Contractor or Subcontractors re-identify or attempt to re-identify any de- identified confidential student records and information.
6.4. Contractor and Subcontractors shall promptly furnish to the District upon request all confidential student records and information they have collected and/or generated and not in the District ossession. Such requests may include but shall not be limited to those made 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.
§ FERPA he Colorado Open Records Act, C.R.S. §§ 24-72-200.1 et seq.
XXXX The District, not the Contractor or Subcontractors, shall respond to all parent/guardian and eligible student requests to inspect and review records, data and other information.
7. School Service Contract Provider. Contractor
Department of Education, a K-12 public education entity or an institution of higher education)
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 the following information attached Exhibit A: (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 or Subcontractors fail to comply with any of the
foregoing requirements in sections 4, 5, 6 or 7 at any time during or after the term of the Agreement the District may, as applicable, terminate the Agreement and/or disqualify Contractor and any one or more of Subcontractors from future contracts and subcontracts with the District. Excluding any data breach, the District may allow an opportunity to cure a breach within thirty
(30) days of written notice.
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
Smartest EDU, INC dba Formative Attn: Partnerships
0000 00xx Xxxxxx, #000 Xxxxx Xxxxxx, XX 00000
10. General Provisions.
10.1. No Assignment. Except with respect to its affiliates or a successor entity that may result from corporate merger, 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. 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.
10.4. 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.
10.5. 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 coverage 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
s Director of Records and Risk Management. 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 as soon as reasonably practical following the expiration of any required insurance that expires during the term of this Agreement. All communication regarding insurance and certificates of insurance shall be sent to:
Poudre School District
Attn: Risk Manager 0000 XxXxxxx Xxxxxx Xxxx Xxxxxxx, XX 00000
Any insurance and/or self-insurance carried by the District is excess of the coverage extended to
notice to the District prior to cancellation or change of coverage. The insurance requirements specified in this section 10.6, shall not reduce the indemnification liability that Contractor has assumed in section 10.7 below.
C ommercial General Liability
a. Each Occurrence Bodily Injury &
b. Personal/Advertising Injury
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 District or third per
network, or 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; (c)
patent or copyright; and/or (d) the conduct of any of employees, volunteers, agents or representatives. The indemnification and hold harmless obligation hereunder shall
members, 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
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. A ttorney 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. Entire 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. Signatures. 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. Warranty 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.
SMARTEST EDU, INC DBA FORMATIVE
By:_ Xxxxx XxXxxxxxx
Co-Founder and Chief Operational Officer
POUDRE SCHOOL DISTRICT R-1
R. Xxxxx Xxxxxxx
Executive Director of Finance
By:_ Xxxx Canine
Director of Professional Development
Student Data Collected Purpose
Scores Teacher data collection, student feedback
Answers, Submissions, & Messages Teacher data collection, student feedback & communication Browser Version User research to improve the experience & provide technical support
IP Address User research to improve the experience & provide technical support
Student Email Address Identify student for login and for the teacher
Student Password Authorize student login
Student Name Identify student for the teacher
Page view / click data / errors User research to improve the experience & provide technical support
User Identifiers From Third-Party Systems Identify student for login, rostering, grade passback purposes (for example Google Classroom, Canvas, Clever, Microsoft, etc.)
Third-Party That Receives or Stores Student Data
Amazon AWS Hosting & data storage
LMS Systems Supporting Grade Passback Grades may be passed back to Google Classroom, Canvas, or other supported systems at the teacher's request Research Firms Analysis and reporting on occasional basis, using anonymized data if possible
Law Enforcement Agencies / Courts As required by law
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