HomeMy WebLinkAboutSBLS Edify Assess SA 2016-17a' SI<Verbeck
Learning Solutions
SOFTWARE AS A SERVICE
SUBSCRIPTION AGREEMENT
This Software as a Service (SaaS) Agreement ( "SaaS Agreement ") is made and entered into this 8th day of September,
2016, by and between Silverback Learning Solutions (hereinafter, "Vendor "), with its principal address at 408 E
Parkcenter Boulevard #300, Boise, ID 83706 and Bonneville School District #93 (hereinafter, "Customer ") with its
principal address at 3497 N Ammon Road, Idaho Falls, ID 83401. Vendor and Customer are each sometimes referred
to herein individually as a "Party" and collectively as the "Parties."
A. Vendor is in the business of providing on -line software services and associated consulting services for the
education industry. The Parties desire that Vendor make such software and services available to Customer under the
terms and conditions of this Agreement.
B. Each order defined in an Order Form (as defined below) will be performed underthe terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions
As used in this SaaS Agreement and in any Order Forms, the following terms shall have the following
meanings:
a. "Agreement" means this SaaS Agreement, any Order Forms, and any online terms of use and
policies posted on the Vendor's website in conjunction with the delivery of the service defined below.
b. "Content" means the audio and visual information, documents, software, products, and services
contained or made available to Customer in the course of using the Service. "Customer Content" is limited to test
questions developed by Customer and uploaded onto Vendor's system for use with the Service. All other Content on
the Vendor's websites and or otherwise made available by Vendor shall be deemed to be "Vendor Content."
C. "Confidential Information" means all technological, financial, commercial or other information or
data of a confidential nature and identified as such by an appropriate legend or marking.
d. "Customer Data" means any data, information, or material provided or submitted byCustomerto
the Service or Vendor in the course of using the Service.
e. "Effective Date" means the date first set forth above; or if an Order Form is subsequently accepted
by Vendor, the Effective Date of the Order Form will be specified on the Order Form.
f. "Initial Order Form" means the first Order Form entered into by Customer and Vendor as of the
Effective Date of this Agreement and attached hereto as Exhibit A. and incorporated by reference.
g. "Intellectual Property Rights" means any unpatented inventions, patent applications, patents,
design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know -how
and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of
a similar nature anywhere in the world.
h. "License Administrator(s)" means those Users designated by Customer who are authorized to
administer Customer's use of the Service.
i. "License Term(s)" means the period(s) during which a specified number of Users are licensed to use
the Service pursuant to the Order Form(s).
j. "Order Form(s)" means the form evidencing the SaaS subscription for the Service (the format of
which shall conform to Exhibit A) and any subsequent order forms submitted in writing, specifying, among other
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things, the scope of licenses and other services contracted for, the applicable fees, the billing period, and other
charges as agreed to between the Parties, each such Order Form to be incorporated into and to become a part of this
Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form,
the terms of this Agreement shall prevail.
k. "Service(s)" means the specific edition and modules of Vendor's online edifyAssessT' software
identified on the Initial Order Form, developed, operated, and maintained by Vendor, accessible via
http: / /www.edifylearning.com or another designated website or IP address, or ancillary online oroffline products and
services provided to Customer by Vendor, to which Customer is being granted access under this Agreement (or as
Vendor may grant to Customer in subsequent Order Forms), including the Vendor Technology and the Vendor
Content.
I. "Student" means any student or other program participant enrolled or matriculated into
Customer's school, college, department or other educational institution whose information is being managed bythe
Service.
M. "User(s)" means a Student or Customer faculty, teachers, instructors, administrators, employees,
representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied
user identifications and passwords by Customer (or by Vendor at Customer's request). For purposes of clarity, a
Student may or may not use the on -line Service (for example, to take an online exam), however, each Student will be
considered a User notwithstanding any non -use of the Service by that Student.
n. "Vendor Technology" means all of Vendor's proprietary technology (including software, hardware,
products, processes, algorithms, user interfaces, know -how, techniques, designs, and other tangible or intangible
technical material or information) made available to Customer by Vendor in providing the Service.
z. License Grant and Restrictions
a. Vendor hereby grants Customer a nonexclusive, nontransferable rightto use the Service, solelyfor
Customer's own educational operations (as defined in the Order Form(s)) and internal purposes, during the License
Term and subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are
reserved by Vendor and its licensors. Notwithstanding anything contained herein to the contrary, Vendor is free to
enter into similar licenses and SaaS subscription agreements with others.
b. Customer shall not, without Vendor's prior written consent, grant access to the Service: (i) to any
User who is a direct competitor of Vendor; or (ii) for purposes of monitoring its availability, performance or
functionality, or for any other benchmarking or competitive purposes.
C. Customer shall not, without prior written consent of Vendor: (i) license, sublicense, sell, resell,
transfer, assign, distribute, or otherwise commercially exploit or make available to any third party (other than Users
and Students) the Service or the Vendor Content in any way; (ii) modify or make derivative works based upon the
Service or the Vendor Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Vendor Content
on any other server or wireless or Internet -based device; or (iv) reverse engineer or access the Service in order to (a)
build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the
Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used
by more than one individual User.
d. Customer may use the Service only for Customer's educational operations and internal purposes
and shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of
applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous
material, including material harmful to children or violative of third party privacy rights; (iii) send or store material
containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or
programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
(v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Customer Responsibilities
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Customer is responsible for all activity occurring under Customer's User accounts and shall abide by all
applicable local, state, national, and foreign laws, treaties and regulations in connection with Customer's use of the
Service, including those related to data privacy, international communications, and the transmission of technical or
personal data. Customer shall: (i) notify Vendor immediately of any unauthorized use of any password or account or
any other known or suspected breach of security; (ii) report to Vendor immediately and use reasonable efforts to stop
immediately any copying or distribution of Vendor Content that is known or suspected by Customer or Customer
Users; and (iii) not impersonate another Service user or provide false identity information to gain access to or use the
Service.
a. Account Information and Data
a. Customer Data. Vendor does not own any Customer Data. Customer, not Vendor, shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property
ownership or right to use of all Customer Data.
b. Effect of Termination. As part of the basic Service provided to Customer hereunder, Vendor makes
available certain Data Extract protocols that allow Customer periodically during the License Term to copy, download
and extract information from the Vendor's Service in standard formats previously developed by Vendor. In addition
to the Data Extract protocols, if this Agreement is terminated (otherthan by reason of Customer's breach), and for an
additional charge payable in advance, Vendor will make available to Customer a file of the Customer Data (in the
standard format that Vendor generally makes available to its other customers) within 30 days of termination if
Customer so requests at the time of termination. Vendor's additional charge will be based on Vendor's then - current
hourly consulting rates and Vendor's estimate of the number of hours required to prepare the copy of Customer's
Data. Vendor reserves the right to withhold, remove, and /or discard Customer Data without notice for any breach,
including, without limitation, Customer's non - payment. Upon termination for cause, Customer's right to access or
use Customer Data immediately ceases, and Vendor shall have no obligation to maintain or forward any Customer
Data.
S. Intellectual Property Ownership
a. Vendor Technology. Vendor (and its licensors, where applicable) shall exclusively own all right,
title, and interest, including all related Intellectual Property Rights, in and to the Vendor Technology, Vendor Content
and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other
information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does
not convey to Customer any rights of ownership in or related to the Service, the Vendor Technology or the Intellectual
Property Rights owned by Vendor. Vendor's name, Vendor's logo, and the product names associated with the Service
are trademarks of Vendor or third parties, and no right or license is granted to use them.
b. Customer Content. Vendor has designed the Service to accept Customer generated information
(such as test questions) and other Customer Content and to integrate such Customer Content with Vendor Content
on the Service. In consideration of the integration and Vendor's publishing of the Customer Content, Customer
hereby grants to Vendor a non - exclusive, non - transferable, perpetual license to use and reproduce any Customer
Content that is uploaded or transferred to the Vendor's Service or website. Such license to use Customer Content
shall survive the termination of this Agreement, unless Customer terminates this Agreement due to Vendor's breach
of Vendor's obligations.
C. Confidentiality.
L The content of this Agreement shall be kept strictly confidential and not be disclosed to
any third party without the prior written consent of the other Party (such consent not to be unreasonably withheld),
except as reasonably necessary to enforce the terms of the Agreement. Vendor hereby provides consent to Customer
to disclose solely as need to comply with statutory obligations regarding public records.
H. Neither Party shall disclose any of the other Party's Confidential Information to any third
party without the other Party's prior written consent. Each Party shall protect Confidential Information received from
the other Party with at least the same degree of care that it exercises with respect to its own Confidential Information
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(but always with no less than a reasonable standard of care), and shall disclose such Confidential Information only to
those of its employees who have a "need to know" in connection with the performance of this Agreement.
M. The duty of confidentiality does not applyto Confidential Information which the receiving
Party can prove:
(1). is generally known to the public at the time of disclosure by the disclosing Party or later
becomes so generally known without the fault of the receiving Party;
(2). was already known to the receiving Party prior to disclosure by the disclosing Party;
(3). is disclosed to the receiving Party by a third party who did not obtain such information
from the disclosing Party subject to any confidentiality obligation;
(4). is independently developed by the receiving Party; or
(5). is approved for release or use by the other Party's prior authorization in writing.
6. Charges and Payment of Fees
a. Base Charges. Unless otherwise specified on an Order Form accepted by Vendor:
L Customer shall pay all fees or charges to Customer's account in accordance with the fees,
charges, and billing terms set forth in the applicable Order Form in effect at the time a fee or charge is due and
payable;
H. The initial "Base Charge" will cover at a maximum the Number of Users listed on the Order
Form at the license fee listed on the Order Form;
M. Payments must be made in advance;
iv. All payment obligations are non - cancelable and all amounts paid are nonrefundable;
V. Customer is responsible for paying for all licenses ordered for the entire License Term,
whether or not such licenses are actively used;
Vi. Customer must provide Vendorwith valid credit information and approved purchase order
information as a condition to signing up for the Service; and
vii. An authorized License Administrator may add licenses by executing an additional written
Order Form. Added licenses will be subject to the following, unless otherwise specified in the Order Form accepted
by Vendor: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal
term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) for
monthly charges, licenses added in the middle of a billing month will be charged in full for that billing month.
b. Limited Customer and User Support. Services shall only include those modules or collection of
Services described in the applicable Order Form. Unless otherwise stated in the applicable Order Form, Vendor
disclaims any responsibility to provide any additional Customer or Usersupport except as may be mutually agreed in
the Order Form or under a separate written agreement to render additional support services.
C. Change Order for Consulting or Development Services. Unless otherwise specified in an Order
Form accepted by Vendor, Services shall not include modifications to the Service. Upon request by Customer, Vendor
may prepare a Change Order (the form of which is attached hereto as Exhibit J for any (i) consulting services or (ii)
development services for modifications or enhancements to features of the Service. Upon mutual agreement and
signature of the Change Order, Vendor shall undertake the work described in the Change Order and bill Customer for
the work per the terms specified in the Change Order.
7. Excess Data Storage Fees
The maximum data storage space provided to Customer at no additional charge is specified in the Order Form. If
the amount of data storage required exceeds these limits, Customer will be charged the then - current storage fees.
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Vendor will use reasonable efforts to notify Customer when the storage used reaches approximately 90 percent of
the maximum; however, any failure by Vendor to so notify Customer shall not affect Customer's responsibility for
such additional storage charges. Vendor reserves the right to establish or modify its general practices and limits
relating to storage of Customer Data.
s. Billing and Renewal
a. Unless otherwise specified in the Order Form, Vendor charges and collects in advance for use of the
Service (all fees are deemed earned upon payment and Customer shall not be entitled to any credit or refund upon
early termination prior to end of the License Term). Any extension or renewal shall be based on then - current charges
in effect after the License Term. Fees for other services will be charged on an as- quoted basis. Vendor's fees are
exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment
of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Vendor's income.
b. Customer agrees to provide Vendor with complete and accurate billing and contact information.
This information includes Customer's legal company name, street address, email address, and name and telephone
number of an authorized billing contact and License Administrator. Customer agrees to update this information
within 30 days of any change to it. If the contact information Customer has provided is incorrect or misrepresented,
Vendor reserves the right to terminate Customer's access to the Service in addition to any other legal remedies.
C. If Customer believes its bill is incorrect, Customer must contact Vendor in writing within 15 days of
the date of the invoice to be eligible to receive an adjustment or credit. In the absence of such contact, all invoices
shall be deemed approved by Customer 15 days of the date of the invoice.
9. Nonpayment and Suspension
a. In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or
terminate this Agreement and Customer's access to the Service if Customer's account becomes delinquent.
Delinquent invoices and accounts are subject to interest of 1.0 percent per month on any outstanding balance, or the
maximum permitted bylaw, whichever is less, plus all expenses of collection. Customer will continue to be charged
for licenses during any period of suspension. If Customer or Vendor initiates termination of this Agreement, Customer
will be obligated to pay the balance due on Customer's account computed in accordance with Sections 6 and 8 above.
b. Upon termination of this Agreement, all Customer payment obligations accrued hereunder through
the date of termination will become due and payable and any installment plan payments will be deemed accelerated,
due and payable.
C. Vendor reserves the right to impose a reconnection fee in the event Customer is suspended and
thereafter requests access to the Service. Customer agrees and acknowledges that Vendor has no obligation to retain
Customer Data and that such Customer Data may be irretrievably deleted if Customer's account is more than 30 days
past due.
lo. Termination for Cause
Any breach of Customer's payment obligations or unauthorized use by Customer or Customer's Users of the
Vendor Technology or Service will be deemed a material breach of this Agreement. Vendor, in its sole discretion, may
terminate Customer's password(s), account, or use of the Service if Customer breaches or otherwise fails to comply
with this Agreement. This Agreement shall not terminate due to lack of use or reduction in maximum number of
Users specified on the applicable Order Form.
11. Representations and Warranties
a. Each Party represents and warrants that it has the legal power and authority to enter into this
Agreement.
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b. Vendor represents and warrants that it wi I I provide the Service in a manner consistent with genera I
industry standards reasonably applicable to the provision thereof, so long as the Service is used pursuant to the terms
of this Agreement and Vendor's on -line terms of use.
C. Customer represents and warrants that:
i. Customer has not falsely identified any information it has provided to Vendor nor
provided any false information to gain access to the Service and that Customer's billing information is correct.
ii. Customer has obtained any consents or authorizations required for Customer to use the
Service and to enter into this Agreement. Vendor will be relieved of its obligations to the extent that they are
affected by Customer's failure to obtain any such required consent or authorization.
iii. Customer acknowledges it is Customer's responsibility to determine whether the Service
offered by Vendor, its hosting environment, and its use with Customer Data is appropriate for Customer and will meet
Customer's needs. Customer is responsible for notifying Vendor in advance in orderto request changes to its hosting
environment, including any additional capacity required to support anticipated peaks in demand that may
significantly increase website hits, transaction volumes, or otherwise increase system resource utilization.
12. Mutual Indemnification
a. Customer shall indemnify and hold Vendor, its licensors and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all
claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in
connection with: (i) a claim alleging that use of the Customer Data or Content infringes the rights of, or has caused
harm to, a third parry; (ii) a claim, which if true, would constitute a violation by Customer of Customer's
representations and warranties; or (iii) a claim arising from the breach by Customer or Customer Users of this
Agreement, provided in any such case that Vendor (1) gives written notice of the claim promptly to Customer; (2)
gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or
defend any claim unless Customer unconditionally releases Vendorof all liability and such settlement does not affect
Vendor's business or Service); (3) provides to Customer all available information and assistance; and (4) has not
compromised or settled such claim.
b. Vendor shall indemnify and hold Customer and Customer's parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs,
damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a
claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a
trademark of a third party; (ii) a claim, which if true, would constitute a violation by Vendor of its representations or
warranties; or (iii) a claim arising from breach of this Agreement by Vendor; provided that Customer (1) promptly
gives written notice of the claim to Vendor; (2) gives Vendor sole control of the defense and settlement of the claim
(provided that Vendor may not settle or defend any claim unless it unconditionally releases Customer of all liability);
(3) provides to Vendor all available information and assistance; and (4) has not compromised or settled such claim.
Vendor shall have no indemnification obligation, and Customer shall indemnify Vendor pursuant to this Agreement,
for claims arising from any infringement arising from the combination of the Service with anyof Customer products,
service, hardware or business process.
13. Disclaimer of Warranties
VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE
SERVICE OR ANY CONTENT. VENDOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF
THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR -FREE OR OPERATE IN COMBINATION WITH ANY
OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR
EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE
WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F)
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THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. THE SERVICE AND ALL VENDOR CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS.
ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON - INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW BY VENDOR AND ITS LICENSORS.
14. Internet Delays
VENDOR'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE
USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER IS SOLELY RESPONSIBLE
FOR MAINTAINING ITS CONNECTIVITY TO THE INTERNET AND OTHER MEANS OF ELECTRONIC COMMUNICATIONS.
15. Limitation of Liabilitv
IN NO EVENT SHALL VENDOR'S AGGREGATE LIABILITY HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID
BY AND /OR DUE FROM CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTGIVING RISE
TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND /OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY
INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR
KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUTOF, OR
IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USETHE
SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY,
ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE
BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
16. Local Laws and Export Control
a. Vendor provides services and uses software and technology that may be subject to U.S. export
controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets
Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer
acknowledges and agrees that the software and Services shall not be used, and none of the underlying information,
software, or technology may be transferred or otherwise exported or re- exported to countries on which the United
States, Switzerland, and /or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or
by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially
Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated
Nationals'). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By
using the Service, Customer represents and warrants that Customer is not located in, under the control of, or a
national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all
U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or
re -export as may be required.
b. The software and Service may use encryption technology that is subject to licensing requirements
under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730 -774 and Council Regulation (EC) No. 428/2009.
C. Vendor and its licensors make no representation that the Service is appropriate or available for use
in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation
export and import regulations of other countries. Any diversion of the Vendor Content contrary to U.S., Swiss, or
European Union (including European Union Member States) law is prohibited. None of the Vendor Content, nor any
information acquired through the use of the Service, is or will be used for nuclear activities, chemical, or biological
weapons, or missile projects, unless specifically authorized bythe U.S. government or appropriate European bodyfor
such purposes.
17. Notice
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Vendor may give notice by means of a general notice on the Service, email to Customer address on record in
Vendor's account information, by written communication sent by first class mail or pre -paid post to Customer address
on record in Vendor's account information; or by letter delivered by nationally recognized overnight delivery service.
Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by
first class mail or pre -paid post) or 12 hours after sending (if sent by email). Customer may give notice to Vendor
(such notice shall be deemed given when received by Vendor) at any time by any of the following: letter sent by
confirmed facsimile to Vendor at the following fax number: +1 (208) 258 -2589; letter delivered by nationally
recognized overnight delivery service or first class postage prepaid mail to Vendor at the following address:
Contract Administration
Silverback Learning Solutions
408 E Parkcenter Boulevard
Suite 300
Boise, ID 83706
18. Modification to Terms
This Agreement may not be amended or modified without written consent signed by the Parties. Provided,
however, Vendor reserves the right to modify its on -line policies or terms of use relating to the Service at anytime,
effective upon posting of an updated version of the policies or terms of use on the Service. Customer is responsible
for regularly reviewing Vendor's on -line policies and terms of use. Continued use of the Service after any such
changes shall constitute Customer's consent to such changes. A waiver or amendment of any term or provision of
this Agreement shall not be construed as a waiver or amendment of any other term or provision.
19. Assignment: Change in Control
a. This Agreement may not be assigned by Customer without the prior written approval of Vendor but
may be assigned without Customer's consent by Vendor to (i) a parent or subsidiary of Vendor, (ii) an acquirer of
Vendor's assets, or (iii) a successor by merger with or of Vendor.
b. Any purported assignment in violation of this section shall be void. Any actual or proposed change
in control of Customer that results or would result in a direct competitor of Vendor directly or indirectly owning or
controlling 50 percent or more of Customer shall entitle Vendor to terminate this Agreement for cause immediately
upon written notice.
C. Notwithstanding the foregoing, in all permitted assignments, this Agreement shall be binding upon
and inure to the benefit of the Parties to this Agreement and to their respective permitted assigns, successors, heirs
and representatives.
d. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing
in this Agreement, express or implied, is intended or shall be construed to give any person otherthan the Parties to
this Agreement or their respective successors or permitted assigns any legal or equitable right, remedy or claim under
or in respect of any agreement or any provision contained herein.
20. General
a. Governing Law, Venue and Jurisdiction. This Agreement shall be governed by Idaho law and
controlling U.S. federal law, without regard to the choice orconflicts of law provisions of anyjurisdiction, and, except
as specified in Section 20(b) below, any disputes, actions, claims, or causes of action arising out of or in connection
with this Agreement orthe Service shall be subjectto the exclusive jurisdiction of the state and federal courts located
in Ada County, Idaho and venue in such courts shall be deemed proper.
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b. Venue. and Jurisdiction for Customer Located in Europe. Africa or Middle East. If the Services will
be performed for a Customer located in Europe, Africa or the Middle East, the following shall apply:
L All disputes and differences between the Parties arising out of or under this Agreement
shall be settled and finally determined by binding arbitration in accordance with the applicable rules of the
International Chamber of Commerce ( "ICC ").
The arbitration shall be conducted in London, England.
iii. The arbitration court shall be composed of three (3) arbitrators, one of whom will be
named by each Party. The third arbitrator, who shall act as chairman, shall be determined in accordance with the
rules of the ICC. The arbitrators shall decide each issue presented to them by a majority vote, and their decisions
shall be in writing and shall be final and conclusive.
iv. The amount of the costs of any such arbitration and by whom they shall be paid will be
determined as part of the arbitration.
V. This Agreement shall be enforceable by (and judgment upon any award rendered by the
arbitrators may be entered in) any court having jurisdiction.
C. Severability. No text or information set forth on any other purchase order, preprinted form, or
document (other than an Order Form or Change Order, if applicable) shall add to orvarythe terms and conditions of
this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid
or unenforceable provision(s), with all other provisions remaining in full force and effect.
d. Relationship of Parties. The Parties are independent contractors and will so represent themselves
in all regards. Neither Party is the agent of the other and neither may bind the other in anyway. Nojointventure,
partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement
or use of the Service.
e. Entire Agreement. This Agreement, together with any applicable Order Form or Change Order,
comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous
negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter
contained herein.
f. Further Assurances. Each of the Parties hereto shall perform such further acts and execute such
documents as may reasonably be required to effectuate the transactions contemplated hereby.
g. No Rules of Construction: Joint Authorship. No rules of construction based on authorship shall be
invoked or used in interpreting this Agreement and for all purposes hereunder, both Parties to this Agreement shall
be deemed to be joint authors.
h. Compliance with Laws. Each Party represents and warrants that it will comply with all applicable
securities and other laws, rules and regulations relating hereto and that it shall not circumvent orfrustrate the intent
of this Agreement.
L Counterparts. This Agreement may be executed by facsimile or electronic signatures and in
multiple counterparts, each of which shall be deemed an original. It shall not be necessary thateach Partyexecutes
each counterpart, or that any one counterpart be executed by more than one Party so long as each Party executes at
least one counterpart. In the event this Agreement is executed in more than one language, the English language
version of this Agreement shall be controlling in all cases.
j. Force Maieure. Neither Party shall be responsible for any delay or failure in performance of any
part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo,
government requirement, civil, or military authority, act of God, act or omission of carriers, or other similar causes
beyond its control. If any such event of force majeure occurs and such event continues for ninety (90) days or more,
the Party delayed or unable to perform shall give immediate notice to the other Party, and the Party affected by the
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other's delay or inability to perform may elect at its sole discretion to: (a) terminate this Agreement or the affected
order solely upon mutual agreement of the Parties; (b) suspend such order for the duration of the condition and
obtain or sell elsewhere software, comparable to the Software to have been obtained underthe order; or (c) resume
performance of such order once the condition ceases with the option of the affected Party to extend the period of
this Agreement up to the length of time the condition endured. Unless written notice is given within thirty (30) days
after the affected Party is notified of the condition, option (c) shall be deemed selected.
k. No Conflicting Agreements. Each Party represents and warrants that the execution and delivery of
this Agreement by such Party does not, and compliance by it with the terms hereof and consummation by it of the
transactions contemplated hereby will not (i) violate any existing term or provision of any law, regulation, statute,
ordinance, rule, order, writ, judgment, injunction or decree, (ii) conflict with or result in a breach of any of the terms,
conditions, or provisions of any agreement or instrument to which it is a Party or by which it or any of its assets or
properties is bound or subject; or (iii) give to others any right of termination, cancellation, acceleration or
modification in or with respect to any agreement or instrument to which it is a Party or by which its assets or
properties may be bound, and as to which will adversely affect its ability to consummate the transactions
contemplated hereby.
I. Legal Fees. In any arbitration or civil action between the Parties arising from or in connection with
this Agreement, or its breach, the prevailing Party in such action shall be entitled, in addition to damages and
injunctive or other relief, to its costs and expenses incurred pursuant to this Agreement, including reasonable
attorneys' fees.
M. Publicity. The Parties hereby agree to use their best efforts to issue a mutually agreed press release
or similar publicity statement within six (6) weeks of the date of this Agreement. Thereafter, neither Party shall issue
a press release or other similar publicity of any nature regarding this Agreement without the other Party's prior
written approval, which shall not be unreasonably withheld. Notwithstanding the foregoing, each Party hereby
agrees the other Party may use its name, URL and logo on its website and in its customer and partner lists for
marketing, corporate and financial presentations.
n. No Sale or Lease of Goods. As between Customer and Vendor, Vendor retains all right, title, and
interest in the Service components. No goods are sold or leased by Vendor under this Agreement. If Customer
desires to purchase or to lease goods from Vendor, such purchase or lease will be governed by a separate mutually
acceptable written agreement between Customer and Vendor or a Vendor Affiliate.
o. Survival. Any of these terms and conditions which by their nature extend beyond the Agreement
termination or expiration remain in effect until fulfilled, including, without limitation, Sections 4(b), 5, 9, 12, 13, 15, 17
and 20 ; and apply to both Customer's and Vendor's respective successors and assignees.
P. Personnel. Each Party is responsible for the supervision, direction, and control of its respective
personnel. Vendor reserves the right to determine the assignment of its personnel. Vendor may subcontract portions
of the Services to Subcontractors and Affiliates selected by Vendor.
q. Actions Period. Neither Party may bring a legal action related to this Agreement more than two
years after the cause of action accrued.
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AUTHORIZED SIGNATURE
The undersigned hereby certifies that he /she has the authority to sign this Agreement.
IN WITNESS WHEREOF, the Parties have executed this SaaS Agreement on the day and in the year as set
forth above.
CUSTOMER:
VENDOR:
AUTHORIZED SIGNATURE
AUTHORIZED SIC3NAT1URE
PRINT NAME
PRIf�`t NAME
Scott Woolstenhulme
Jade Millington
TITLE
TITLE
Assistant Superintendent
Chief Financial Officer
DATE
DATE
September 22, 2016
September 21, 2016
Please return this signed SaaS Agreement along with completed purchase order to Silverback Learning by fax,
email, or postal mail.
Fax: (208) 258 -2589
Attn: Contract Administration
Email: CFO @silverbacklearning.com
Postal Mail: Silverback Learning Solutions
408 E Parkcenter Blvd
Suite 300
Boise, ID 83706
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EXHIBIT A
ORDER FORM
This Order Form is being executed and delivered pursuant to the SaaS Agreement defined above, the terms and
conditions of which are hereby incorporated by reference.
Date of SaaS Agreement
September 9, 2016
Customer
Bonneville School District
Name of covered school(s)
EMAIL
Effective Date of Order Form
September 9, 2016
License Term:
1 Year
Services:
EdifyAssess'" Platform Installation with: Item/Test Creation, Test Scheduling
and Distribution, Online Testing Application, Test Analysis Reporting Suite,
Edif StatT", complimentary item bank.
Total Number of Students
9,333
Pricing for Student User Access:
$3.00 per student
Pricing for Staff Development (optional):
$1,000.00 per day plus all travel expenses for onsite;
$100 / hour for online training.
Pricing for Installation and Integration
Startup consulting can be added at $150 per hour plus travel expenses.
Final SaaS Agreement Pricing:
$27,999.00
ORDER FORM ACCEPTED BY:
PRIMARY CUSTOMER CONTACT
TITLE
Scott Woolstenhulme
Assistant Superintendent
PHONE
EMAIL
(208) 557 -6865
woolstes &93.1<12.id.us
BILLING ADDRESS
SHIPPING ADDRESS
3497 N Ammon Road, Idaho Falls, ID 83401
3497 N Ammon Road, Idaho Falls, ID 83401
CUSTOMER AUTHORIZED SIGNATURE
TITLE
✓--��
Assistant Superintendent
SILVERBACK LEARNT S VTIONS AUTHORIZED SIGNATURE
TITLE
(Ji .
Chief Financial Officer
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s Silverback
Learning Solutions
EXHIBIT B
FORM OF CHANGE ORDER
#
Description
PRINT NAME
1.
Date of SaaS Agreement
TITLE
2.
Customer
3.
Name of covered school(s) or
department(s)
4.
Effective Date of Change Order
5.
Scope of Services and Proposed Change
6.
Schedule
7.
Charges
8.
Charges payable terms
ORDER FORM ACCEPTED BY:
CUSTOMER:
VENDOR:
AUTHORIZED SIGNATURE
AUTHORIZED SIGNATURE
PRINT NAME
PRINT NAME
TITLE
TITLE
DATE
DATE
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EXHIBIT C
Addendum to Edify Learning Terms and Conditions
Notwithstanding the standard terms and conditions, Vendor and Customer agree to these additional terms and
conditions required by the Idaho Student Data Accessibility, Transparency, and Accountability Act of 2014, Idaho Code
Title 33, Section 133.
1. Vendor agrees to comply with all applicable Idaho state and federal laws;
2. Vendor guarantees to have in place Administrative Security, Physical Security, and Logical Security controls
to protect from a Data Breach or Unauthorized Data Disclosure;
3. Vendor agrees to notify School District within 24 -hours of a data breach or unauthorized data disclosure;
4. Vendor will restrict access to personally identifiable information, as defined below, to the authorized staff of
the vendor who require such access to perform their assigned duties;
5. Vendor is prohibited from any secondary use of personally identifiable information, as defined below,
including sales, marketing or advertising;
6. Vendor will destroy all data and records containing personally identifiable information within 24- months of
termination of web -based products and services and notify the School District of date and manner of the
destruction of records;
7. Vendor agrees to accept the following penalties for non - compliance with these provisions:
a. Immediate termination of web -based products and services. Vendor will refund to the School
District all fees paid in the current fiscal year, less the amount pro -rated for months of use prior to
the breach of terms;
b. Vendor will indemnify and hold harmless School District and its employees from any and all
third -party claims arising therefrom in the event the vendor breaches these terms.
Defined Terms pertaining Solely to this Exhibit C
Administrative Security consists of policies, procedures, and personnel controls including security policies, training,
and audits, technical training, supervision, separation of duties, rotation of duties, recruiting and termination
procedures, user access control, background checks, performance evaluations, and disaster recovery, contingency,
and emergency plans. These measures ensure that authorized users know and understand how to properly use the
system in order to maintain security of data.
Data Breach is the unauthorized acquisition of PII.
Logical Security consists of software safeguards for an organization's systems, including user identification and
password access, authenticating, access rights and authority levels. These measures ensure that only authorized users
are able to perform actions or access information in a network or a workstation.
Personally Identifiable Information (PII) includes: a student's name; the name of a student's family; the student's
address; the student's social security number; a student education unique identification number or biometric record;
or other indirect identifiers such as a student's date of birth, place of birth or mother's maiden name; and other
information that alone or in combination is linked or linkable to a specific student that would allow a reasonable
person in the school community who does not have personal knowledge of the relevant circumstances, to identify the
student.
Physical Security describes security measures designed to deny unauthorized access to facilities or equipment
Student Data means data collected at the student level and included in a student's educational records.
Unauthorized Data Disclosure is the intentional or unintentional release of PII to an unauthorized person or
untrusted environment.
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