HomeMy WebLinkAboutPresence Learning 2015-16_4\ ^i - ;, Ptesence r- e.l t rr I n.\,
Plelglqeleamlnr ConsuElnt Service! Agreel!e!!
This Consulting Services Agreement ("Atreement") alonB with its accompanying Exhibits, issued on July
15, 2015 ("lssue Date"), is entered into as of July l, 2015 {the "Effective Date") by and between
presencelearning, lnc., a Delaware corporation ("PresenceLearninS") and Bonneville loint School
Dlstiict 93 with its principal place of operation in ldaho falls, lD (totether with its aSents, employees,
and affiliates, "partner"). PresenceLearning and Partner are referred to herein individually as a "Party''
or collectively as the "Parties."
1, Services. presenceLearning will make available to Partner qualified clinicians and teachers,
including but not limited to special education teachers, speech-lan8ua8e pathologists,
psychologists, social workers, counselors, and occupational therapists (each, a "clinician") to
provide supplemental educational services in accordance with the terms and conditions of
Exhibits A and B, herein incorporated by reference, remotely or via the web, to Partner clients
with identified or suspected specialneeds, including, but not limited to:
a. lnstruction and instructional services; consultation and collaboration with teachers,
parents and partner; initial and triennial assessments; adminlstrative and billint work;
pre- and post.assessments and intervention services; maintenance of regular
documentation of services provided, recommended service plan, services provided, and
responsiveness to services as well as participation in Partner meetings, including, but
not limited to, individualized education planninS meetin8s, as mutually aBreed by
Partner and PresenceLearnins.
CollectivelY, (the "Services").
2. Schedule and Location of Services. Services will be provided exclusively via computer or
telepractice, unless otherwise a8reed.
3. Service Levels and Terms. Parties aSree that services are to be provided as follows:
a. Services for 250 clients "Client(s)") per month durin8 the term of this Agreement'
b. Hourly rate of $75.(x) per hour ("Hourly Services Rate")'
c. lnstallation tee of $51.50 per Client per year ("Technology Setup Fee")'
4. Fees. ln exchange for the Services, Partner agrees to pay PresenceLearning according to the
following schedule:
Monthly
Payment
Partner agrees to pay for Services at an Hourly Services Rate of 975.00 per hour.
EfFect市 e for anv Servに es being provlded,om珀藤耐潮",町 thdmL●●
PrcsencrL.rn$ng intokc $all rcprcscnt r flr ior Sll.{es b.aad oi hlxar dr*t ,25
ol.nts ('Mlnlmum OLntG)'l. P.rtncr rn y lhct to rducr tlb lltrrhxlm Ohflt
numbcr by provulnt wrtttan rctkc to Prtsancctaarnltf drbllhg s9cdfr" amad
Ol.nt3 th.t hev. rhhcr (il lchlar.d thclr IEP to.b .nd no lol|lr rrqlha San lcrr
undlr thclr IEP or (lll tru no lorqcr cnrollcd ln Partncr's schoo{r}, lf tlt! tool aumbcr
of Ohnts dro03 b.low th. numbcr of Mlnlmum OLnts ln arry dum gdr, EIEl.frt[! s to ,nrk . tot.l mlnlmum pryrnGnt of $42,1t :s0 (!$nl ts tlEldhssat clhffiI Hdlrly San krs R.tc t 2.5 hours) pGr mottth to Pfr6sreL@,.€ihtf ffinfr
nottt L tted.
Partner agrees to pay 951.5{l per Client per ycar who receivcs Servlces for an inttial
tota!of S12,875.00.
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PresenceLearninS, but not cancelled with at least 24 hours adv'nce notice'
PresenceLearnin8 commits in tood falth to make best efforts to use the tlmc for
'ny
session cancelled with less than 24 hour notice for session make-ups, documentation
or plannint work that would have been necessary re8ardless' Partner will onv b'
iouromcm xrii. prcgFL.rtnitf ctell prwldc Prrtlrcr o 3l{S ol cul* mb
.lr*I.s -,4 ttelas.tl ftcc of dr6c. Addklon l $t3 can br grrdtrr.d * $s pr rct,
or, lndhdduel hctro of lqubmart mfy b: pudles:d lndlvHu$y rs nrrcgrr'
occuortlonel Thcrary Manlouhbhs. PEsGnc.E.mkf, crn puddc Paulr dEt !!tGl
of s.rttrlh occupation.l thct Py manlpuhtrbs rt $33 Pcr $t, plt8 $bPl{ cEG, rl
services from a staff member including some or all of the followint servlces client
selection, school site selection, technical set-up, paraProfessional traininS, client
scheduling, administrator orientation, school principal orientation, lT department
training, school clinician traininE, parent orlentation(s), and sPEDinsBht traininS for t
an additional fee dependent on implementation requirements'
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Partner agrees to pav preSenceLearning for Servlces that are scheduled wth
bil:ed once fOr this time.
ISignatures appear on the followinB pagel
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tN W|TNESS WHEREOF, the Parties hereto have caused this ASreement alonE with its Exhibits to be
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Erhi!!! !\: Terms and Condhions
*rvkaa. Preiencelearnint will provde conqJltin8 servicer to Panner
relatin8 to the proviiion of supplemental educational i€rvices as
mandated by State and Federal law to Partne/s Clients (the
"SeNic.s'l. The Services will be provided accordrnS the terms s€t
forth in lhis ASre€ment and lts Erhibits. Pa^ner shall provide
PresenceLearning with the environment, equipment and supeNision
necesgary lorthe provision ol Servi(es as Jet fonh in Erhibit S'
Fe6 and Payrnrnt Tarms ln consideration lor the seftices, Panner
aSrees to paY PresenceLearnin8 in accordance with the fee rhedule
ret lorth in this atreement All tees dua hereunder are non-
refundable and are not continSent on any additional s€rvices to be
provided. Partner lhall pay all amounts due withrn thiny (30)daYs of
Prer€nael,earninE's invoice date Pa(ner v,ill promptly notifY
PrerenceLearnint of anY disputed amounts and the reason for tuch
dispute, but in no even later than 20 daYs from recerpt ol invoice
Unle$ Presencelearning receives notice of anY such displ/te, within
20 days of receipr of such invoice, such invoice shall be considered
undisputed and shall b€ due and Payabl€ no later than 30 days ol the
dale of such rnvoi(e' outstandint balances shall accrue interest at a
rate equal to the lesser of one and one halt p€rc€nt (1 596) per month
or the maxrmum rate permitted bv applrcable law, hom due dale
unlil paid, plus Prescncetearnint'5 reasonable costs ol colleclion'
kBcncataarnlnt Mat.,l.la. Presencelearnint retains all ri8ht, title,
and interest to any malerials and intellectual property that rt
develops or provides a5 pan of Seruices. Partner a8ree5lo maintain
(and nol supplement, remova, or modilY)allaopYriSht, trademark, or
other proprietarY notices on such material5 Provided Pa'tner is not
in breach of any term ol this ASreement, PreienceLearninS Srants
Partner a non-erclusive, lamited license, which license 5hall terminate
uDon erpiratron or termination of this A8reement, to reproduce and
distribute the Materiall solely to assist in ihe provision of Seruices in
accordance with the termt herein
lndamnlfraatloi. Pa(ner shall indemnrlY and hold PresencetearninS
harmles5 a8ainst any and all claims, demands, damates, liabilities and
cosrs (includinS attorney'5 fees) incurred by PresenceLe.rning whrch
directly or indirectlY result from, or arase in connection tvith, any
netlitent act or omi5sion or willful misaonduct of Pa(ner, its at€nt5,
or employees, Pe(aining to its activitiel and oblitations under this
aSreement. PresenceLea.nins shall rndemnifY and hold Panner,
harmless aSarn3t any and allclaims, dehandJ, damaSes, liebrlities and
cortr lincludint anorney's feei) rncurred by Panner which direttly or
indirectly result from, or arite in connection wilh, any neSlitent act or
omitsion or willtul misaonduct ot Pres€ncelearninS, ili aSants, or
employees, perlarninS to its activtiet and obli6alion5 under this
ASreement. The roreSoinS obligations are condilioned upon: (a)
prompt wntren notice by the andemnified partY to the indemnitYrng
pariy of any claim, action or demand lor which indemnirY is claimed;
(b) complete control of the defenre and ienlement thereof by the
indemnityint pany, p.ovided lhat no settlement ol an indemnified
clarm shall be made wathout the consent of the indemnifred party,
such cons€nt not to be unreasonably wrthheld or delayed; .nd (c)
reasonable cooperation by the indemnified party rn the alefense as
the indemnifyinS pany may request. The indemnified party shali have
the ri8ht to participate in the defense a8ainst the indemnifred clarms
with counselot rts Ehoice at its own expente,
Umlt tlon ot U.bllhly. ln no event will Presencelearnins be liable for
any rocidental damagei, cont€quential damaget or any lost profilt
.nsing from or relatint to this Agreement or to the Services, whether
in contract or to.t or othaavise, even if PreSenceLearnint knew or
5hould have lnown of the possibilitY of tuch damages
Prer!nceLearning's crrmulative IabilltV relalinB to thit Atreement will
not exceed the actual feet paid by Panner to Pres€naeLeaminS
durinB the school yea. for three (3) months immediately preaedinS
the date on which a claim is made; provided that iuch amouni shall
under no circumstancei exce€d S10,000. Panner acknowledSe! that
the ASreement reflects an adequate and acceptable allocatlon of isk
anc, that rn the absence ol the loretoin8 limitatront Contactor would
not enter into the atre€ment. Other than with resp€ct to (i)
infrinSement or mtseppropriation of PresenceLearnind5 intellectual
p.operty raShts pursuant to seation 3 hereof, (ii) the parties'
indemniflcition obtrtations pursuant to e<tion 4 hereof, (iii)
Panne/s oblitalion to pay fe€s when theY become due an accordance
with section 2 hereof, and (iv) breach of confidentialitY bv Partner
pursuant to section 10, Partne/s cumulative liability relerinB to thi3
ASreement wrll not erceed rhe actual lees paid bY Partner to
PresenceLearnins durlnS the tahool year for three 13) months
immediately preaeding the date on whiah a claim is made; provided
that such amount lhallunder no circumstance3 erceed S10.O0O
'on-solldtrtlon.
Panner shall not, durinS the term of the ASreement
and for one (1) Year thereaher, directlY or indnedly solicit, induce, or
attempt to rnduce any PresenaeLealninS emplovee or contractor
without Pres€ncetearninS's prior written consent.
Ta.m.nd Ta.min tlon. This Agre€ment shall be in eltect.s of the
Effective oate and shall continue unlil lune 30,2016 lthe "lniliel
rerm-). upon the exprrction or termination ol lhrs Agreement for
eny reason, all amounts owed to PresenceLearning under this
Agreement, which aacrued b€fore such termination, or erpa.atlon Y'ill
be immediately due and payable. ln addition to the post_termination
obligalions in ihis Section 7, Se.tion5 3 throu8h 14 Yrill survive anY
expiratron ol (ehination of thi5 Atre€ment. ln cese of early
termination priof to the end of the lnitirl Term other then lor breach
by Presencetearnint, Partner shall paY a cancelation tee of 5750 per
Clent, multiplied by the greater of either' (a) the minimum number
ol Clients or (b) the br8est number of Clients Served in anY tiven
month dunnt any term hereof.
DBcl.ini.r ol Wrrrantiaa. Subject to the warrantiet and
reprer€ntatlons ret out in sectaon 13 hereol, the seNicet are
provided -as k' without any warrantY and Presence[earnint
exprerlly disalaim5 any and all wa(anties, exprelt, implied, or
statulory, including wafianties ol title, nonintrintement,
fierchantabrlity, and ,itness lor a panicular purpose.
Udltad Guaraate of Tha.apbt lvallablllty. l, this ASreement is nol
elned by Partner wrlhin thiny (30) calendar days of the lssue oate,
PreJenceLearnins does not 8uarante€ sutficlent clinician availabiliw
to provide required S€rvices. ( thi5 agreement is sitned by Pa(ner
within 30 days of the lsiue oate, PresenceLearning do€s guaGntee
suff icient clinacrans provrde required Services-
Conid.nlLlity. Panner undersbnds that i! may receive confidential
end propaetary rnformat,on relating io PresenceLearning'3 business.
Partner aSrees that the PresenceLearnint proprietary information is
confrdential and il ihe sole, erclusive and extremelv valuable
prop€rty of PresenceLearnin!. lt is understood and agreed that
money damates woutd not be a sufficient remedy for any panne/s
6.
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breach of confidentlalatY and that Prrsencel'earnint shall be entilled
to specific per{ormance, includrnS, wtthout hmitation, iniunctive
relief, as a remedY lor anY auch breach bY lhe Panner in anY coun ol
competent iurisdidion. Such remedY shall nor be deemed to b€ lhe
erclusive remedy lor breach of confidentialalY but shall b€ in addition
to all other .emedies availeble at law or equity.
PresenceLearninS acknowledSes its obliSation to complv wrth alt
federal and state laws reSardint privacy includin& but not limited lo,
the family Educational Rrthts and PrivacY Act (FERPA) and the ldaho
Student Oata Accestibility, Transparency, and Accounlability Act of
2014 (ldaho Oata AacountabilltY Act) PresenceLearnins a8rees that
all information r€tardinS rervices provrded puriuant lo thr3
Agreement, includin& but nol limitcd !o, a 3tudenfi identity, shall b€
confidential. Prelence[earnrnS ic prohibited from disalotnS anY
inlormation obtained as a relult of rendering Servic$ purtuant to
this Agreement to anY individual not authorired and dire<ted by the
School Oittrict, or witholrt the consent ot the parent/guardian or the
student, il 18years ol age or older.
STUOENT OATA PRIVACY AND SECURITY: PTE5€NCELEAINiNS
acknowled8es rts obliSation to complY with the ldaho oata
AccountabilitY Act, ldaho Code Sect,on 33_133- Pres€ncetearnrng
covenants and repreients as tollowi: (i) PresenceLearnins agrees that
alr informatbn regardinB Services provaded pursuan! to this
Agreement, InaludinS, but not lihited to, the sludcnt's identity and
the nature of services rendered, shall be confideotral and cooplY
with all lederal and state lavrs; (ri) Pres€nceLearning represents and
\rarrants tha! it has in place Administrative Security, Physical
Securiry, and Lo6tcal SecurrtY controls lo protect lrom a Dara 8r€ech
or unauthorired dala drsclogurei (iiil PresenceLearninS attees to
re5trict access to PersonallY ldentifiable lnformation (Pll) to onlY
authorired ttaff who requlre guch access to perform their assiSned
duties; (iv) PresenceLearning shall not use Student Data and Pll for
sacondary uses includinS, but not limlted to, sales' marketinS' or
adve(ising rn any manner other than in an anonYmized and
ag8regate formau (v) PresenceLearnins a8rees to indemnity and hold
harmless the S.hool Oistrict from any liability arisrnt out of
noncompliance wrth state and federal law reSardinS Student oata
Privacy and Securiryj and (vi) PresenceLearnint rlpresents and
warrants that it hat an appropriate recordg retention sahedule and/or
policy tor the destruction ot dala
PENALTIES FOR PRTSENC€LIARNING'S FAILURE TO COMPLY WITH
STUOENT DATA PRIVACY ANO SECURITY
Penalties in (ase non compliance by PresencetearninS with state and
federal law or its covenants and repret€ntations retardinS Student
Data Privacy and Security, as set forth in this agre€ment, will be
assessed at the reasonable drsaretion of School District's goard of
Trustees and may include, but are not limited to: (i) lmmediete
termination of any contracts with the khool oistrict without cause
and lor convenience, without recorJrse by PresenceLearnins; (tr) a
two-year ban on PreenceLearnrns's abilrty to contract and provide
services to the School Districti and {iii) any other sanction the School
Distric(i Eoard of Trrrstees deems proper and eppropriate under the
circum5tance5.
DEFINITIONS
'Adminastrative SecuriV' consists of policies, procedures, and
perionnel controls inaludinS security policieg, trainrng, and audits,
technrcal rrainrng,,upeNisron, reparation of duties, rotation of
duties, recruitinS and termination procedures, user access control,
baclground checks, performance evaluationt, and disaster recovery,
continSency, and emergenay ptanJ. These measures entura that
aulhorized user3 know and unde6tand how to propertY us€ the
system in orderto maintain te<urily of data.'
"Data Breach" is the unauthorired acquisition of PII
'Lo8i6l Security" conists of toftware 5.fe8uard5 for an
orSanrration's systlms, includinS u*r identificetion and palsword
access, authenticatin& acce3s ri8hts and authoritY levels. These
measurel ensure tha! onlY authoriled u5ers are able !o perform
aclions or acce33 information in a network or a workstation
"Perionally ldent'fiable lnlormation (Pll)" includes: a student's namei
the name of a 5tudent's familY;the student's address; the studcnts'
so<ial se(urity number; a student educatron unique identificalion
number or biom€tric record; o. other indked ident iers such as a
st'rdehfr date of birth, place of birlh or mothe/t marden name; and
other rnformation that alone or in combination is linked or linkable to
a specific sludent that would allow a reaionable p€rion in the school
community who do€s noi have p€r$nal knowled8e of the relevant
circumstances, to identify the 3tudent.
'Physical Security- describes tecuritY meesuret desitned to deny
unauthori2ed access to facilrtres or equiPment,
"Student oa!a" meanl data collected at the student level and
included an a $udenf s ed uaataona I records.
"unauthorired Oata Dis(losure- is the intentional or unintentional
release of Pllto an unauthorired p€rson or untrusted environment
Mlt alLan.oll3. This Agreement will b€ Soverned by the laws of the
State of ldaho (wilhout tivinS eftect to any conflic of lawg prin€iple5
that p.ovide for the appricition of the law of another iurisdiction).
The waiver of a breach of any lerm hereof will in no way be
construed as a waNer ol any other term or breach hereof. lf anY
provi$on of thrs ASreement i5 held by a coun ot compatent
iurisdiction to be unenforceable, the remarnint provisioos ol this
A8reemeni w'll rehain in lull force and effeat. lhe headinSs rn this
Agreement do not affect {s interpretation. Thrs ASreement mav only
b€ amended by the mutual consent of the Pa(ies in writinS. This
Agreement constitutes the entire aSreement between ihe Parties
retardinS the services, and supert€det all prior or conlemporaneous
a8reements and understandinSt between the Paftiei relaonS to the
SeNices,
Partna, Lpltt.ntatlonr. Panner hereby represents and warrants to
Pres€nceLearnint as followt: (l) Partner has the ritht, power, and
authority to enter rnto and p€rlorm its oblitations under thiS
Atreement, lii) Panner has obtained all necessary consents in
accordance with its op€rations to erecute and dellver this &reement
and perfo.m its obligations under thii aSreement, (iii) the
undersign€d has the riSh!, power and aulhor(Y to enler into this
agreement on behall of Panner, (iv) this ASreement conltitutes the
lelal, valid and bindint obliSation ol Panner, enlorceable atainst
Panncr in acco.dance with its terms, iubject only to the et ect, it any,
of (A)applicable bankruptcy and orher similar laws affectinS the
n8hts ol creditors tenerally and (g) rules ot law 8overnint tpecifia
performance, injunctive relief and other equitable remadies, and (v)
the execution, delivery, performance of and comptance with thir
ASreement vrill not, rxith )r withoiit the pasiate of time, resuk in any
violarion or be in conllict with or connituta a delauk under any
contract to whiah Panner is a perty or any terms or provistons
thereol.
Prasrncataarnlnt Rrprtaantatbna. Presencelearning hereby
repreJants and warrants to Panner as follows: (i) Pre*ncelearnrng
ha3 the ri8ht, power, and autho.ity to enter into and p€rform its
obligationt under this Atreement, (ii) Pres€nceLearning has obtained
all nccassary coni€nt5 in aacordanae with i$ opeaations to erecute
and deliver rhis ASreament and p€dorm its obligations under this
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