HomeMy WebLinkAboutPrescense LearningDocuSign Envelope ID : B268F9BD-E4FE-4C11-BBAF-9B9D564B2FEC
Presence lea rn i ng
Service Order
Customer Name and Contact Information
Name: Bonneville Joint School District 93 -ID
Address: 3497 N AMMON RD IDAHO FALLS, ID
Customer Primary Point of Contact
Name: Julian Duffey
Email Address: duffeyj@d93.k12.id.us
Customer Secondary Point of Contact
Name:
Email Address:
Presencelearning Contact Information
Name: Sarah Finney
Email Address: sarah@presencelearning.com
Service Order
1. Services
Service Student Quantity Price per Service Service Total
Annual SLP Services 200 $1,506 .75 $301 ,350 .00
Annual OT Services 0 $1 ,506 .75 $0 .00
Annual BMH Services 0 $1,506.75 $0 .00
2 . SLP Assessments
Service Student Quantity Price per Service Service Total
Screening by SLP 0 $56 .00 $0.00
Screening by SLP Bl 0 $101.00 $0.00
Evaluation Coordination and Reporting by SLP 0 $225 .00 $0 .00
Evaluation Coord ination and Reporting by Bilingual 0 $225 .00 $0.00
SLP
Review of Records by SLP 0 $100 .00 $0 .00
Additional Assessment Compone nt by SLP 0 $29 .00 $0 .00
Articulation Standard Assessment 0 $60 .00 $0 .00
Auditory Processing Select Index 0 $74 .00 $0 .00
Classroom Observation by SLP 0 $41 .00 $0 .00
Early Childhood Language Assessment 0 $90.00 $0 .00
Fluency Standard Assessment 0 $100 .00 $0 .00
Language Select Index 0 $41 .00 $0 .00
Language Standard Assessment 0 $130 .00 $0 .00
Pragmatic Language Standard Assessment 0 $80 .00 $0.00
Phonological Process Analysis Select Index 0 $23 .00 $0 .00
Phonological Processing Assessment 0 $67 .00 $0 .00
Supplemental Language Screener 0 $23 .00 $0.00
Spanish Language Standard Assessment 0 $125 .00 $0 .00
Spanish Language Select Index 0 $41 .00 $0 .00
Spanish Auditory Process ing Select Index 0 $74 .00 $0 .00
Add it ional Bilingual Assessment Component 0 $41 .00 $0 .00
Spanish Articulation Measures (SAM) 0 $41 .00 $0.00
Spanish Articulation Standard Assessment 0 $50 .00 $0 .00
PresenceLearning I 415.512 .9000 I presenceleaming.com
530 Seventh Avenue , Suite M, New York , NY 10018
Terms and Condition Version 1.16
3. OT Assessments
Service Student Quantity Price per Service Service Total
Screening by OT 0 $56 .00 $0 .00
Evaluation Coordination and Reporting by OT 0 $225.00 $0.00
Review of Records by OT 0 $100 .00 $0 .00
Classroom Observation by OT 0 $41.00 $0 .00
Standard School-Related-AOL Assessment 0 $65 .00 $0 .00
Standard Sensory Processing Assessment 0 $65 .00 $0 .00
Standard Motor Skills Assessment 0 $75 .00 $0 .00
Standard Visual Perception Assessment 0 $65.00 $0.00
Standard Preschool Assessme nt 0 $100.00 $0.00
Additional Assessment Component by OT 0 $29 .00 $0.00
4. BMH Assessments
Service Student Quantity Price per Service Service Total
Screening by MHP 0 $115 .90 $0 .00
Evaluation Coordination and Reporting by MHP 0 $275 .90 $0 .00
Review of Records by MHP 0 $200.90 $0 .00
Rating Scale Assessment 0 $115.90 $0.00
Classroom Observation by MHP 0 $78 .18 $0 .00
Additional Assessment by MHP 0 $206 .93 $0.00
Additional Requested Meetings 0 $100 .90 $0 .00
Translation Services 0 $100 .90 $0.00
5 . Psychoeducational Assessments
Service Student Quantity Price per Service Service Total
Evaluation Coordination and Report ing by MHP 0 $275.90 $0 .00
Review of Records by MHP 0 $200.90 $0.00
Cognitive Select Index 0 $100.90 $0 .00
Process ing Select Index 0 $100 .90 $0 .00
Ach ievement Select Index 0 $100 .90 $0 .00
Rating Scale Assessment 0 $115 .90 $0 .00
Classroom Observation by MHP 0 $78 .18 $0 .00
Achievement Standard Battery 0 $206 .93 $0 .00
Long Cognitive Battery 0 $206 .93 $0 .00
Additional Assessment by MHP 0 $206 .93 $0 .00
Processing Standard Battery 0 $206 .93 $0 .00
Additional Requested Meetings 0 $100 .90 $0 .00
School Psych Consultation 0 $74 .00 $0 .00
PresenceLearning I 415.512.9000 I presencelearning.com
530 Seventh Avenue, Suite M, New York, NY 10018
Terms and Condition Version 1.16
Service Student Quantity Price per Service Service Total
Translation Services 0 $100 .90 $0 .00
Short Cognitive Battery 0 $100 .90 $0 .00
Select Spanish Index 0 $200 .90 $0.00
Spanish Battery 0 $309 .93 $0.00
Screening by MHP 0 $115 .90 $0 .00
Presencelearning I 415.512.9000 I presencelearning.com
530 Seventh Avenue, Suite M, New York, NY 10018
Terms and Condition Version 1.16
Service Order
Minimum Fees Per Service Order $301,350.00
Assessments Commitment 0
An nual Service Fees are based on the assumption of prior year's
utilization and Ext ended School Year ("ESY'") or services provided
follow in g the last regular day of the school year a re not included.
Flat Rate Assumptions
Psychoeducational Assessment Comm itment $2 ,250 .00
Document Camera $85.00 (each)
Service Order Term July 1, 2020 through June 30, 2021
Presencelearning I 415.512.9000 I presencelearning.com
530 Seventh Avenue. Suite M, New York , NY 10018
Terms and Condition Version 1.16
DocuSign Envelope ID : B268F9BD-E4FE-4C11-BBAF-9B9D564B2FEC
Service Order Form
Except as expressly set forth in this Service Order, the parties agree to be bound by the terms of the Master Service
Agreement ("Agreement"). To the extent there is any conflict between this Service Order and the Agreement , this Service
Order shall govern . The terms of this Service Order are confidential information.
The parties have executed this Service Order as of the date of the last signature ("Service Order Effective Date").
Presencelearning , Inc. Customer
By 1;;;:~~
~EA9233E59F9F440 ...
Name: Name:
Anthony Pane Julian Duffey
Title : Title :
special education director
CFO
Date : Date :
2020 -07-27 2020-07-27
Presencelearning I 415.512 .9000 I presencelearning .com
530 Seventh Avenue , Suite M, New York , NY 10018
Terms and Condition Version 1.16
DocuSign Envelope ID: 8268F9BD-E4FE-4C11-BBAF-989056482FEC
• Presence aming
Master Service Agreement
This Master Services Agreement ("Agreemen t") entered into as of the date of the last signature ("Effective
Date" ) by and between Pre sencelearning, I nc., a Delaware corpo ration with a place of bu siness located
at 530 Seventh Ave, Suite 407 , New York, NY 10018 ("Pre se ncelearning") and the entity named in an
Service Order that is receiving the Services ("Customer"). Presencelearning and Custome r agree as
follows:
1. Services. This Agreement shall apply each time Customer engage s with Prese ncelearni ng for the
provision of services and/or products ("Services " ) through a Service Order and/or other mutually
agreed upon document. Services will be provide d by a licen sed clinician ("Clinician ") and includes
acces s to Pre sencelearning's proprieta ry online therapy platform. All Services and other obligations
w ill be as set forth in each appli cable service order referencing this Agreement ("Service Order").
2. Platform.
2.1 . Acce ss and Use . Th e Services are provided and delivered t h rough Presencelearning's proprietary
on line therapy platform, which i ncl udes evidence -ba se d and user-generated content library with
lOOK+ items; user-v isible aspects ; proprietary software and technology embodied in the
platform; and proprietary se lf-guided training modules, (collectively, the "Pla tform"). The
Platform enables engagement between Customer's students and Customer's support staff
(collectively, "Users ") and Presencelearning's clinical providers ("Clinicians" ). During the Service
Order Term , Presencelearning grants Customer an d its Use rs a limited, non-exclusive, revocable ,
non -s ublicen sable , non-transferable, roya lty-free, right and license to use and displa y the
Platform .
2.2. Unauthorized Use. Customer ma y not disclose to or provide access, allow to use, or displa y the
Platform to any third-party, without express written permiss ion from Pre sence learning.
Customer shall establish, maintain, and enforce pol icies and procedures to safegua rd and protect
the Platform, which are no le ss rigorou s than r easo nable standards Customer maintains and
protects its own confidential information . Customer will be responsible for all acts and omissio ns
of its Users who have access to the Platform . Customer will notify Presence Learning immedi ately
of any unauthorized acc ess to or use of th e Pl atform .
2.3. Changes to Platform . Pre sencelea rning ma y, at its so le discre t ion, make any cha nge or update
to the Platform that it dee ms ne cessary o r use fu l to (i) maintain or enhance the quality or delivery
of Pre se ncelearning's products or services to its cu stomers, (ii) for t he efficiency or performance
of Platform, or (iii) to com ply with applicable law.
2.4. Safeguard. Customer will not, nor permit or e ncourage its Users or any thi rd-party to, d irectly or
indirectly (i) reverse engineer, decompile, disass emble or otherwise attempt to discover or
derive the source co de, object co de or underlying structure, idea s, know -how o r algorithms
DocuSign Envelope ID: B268F9BD-E4FE-4C11 -BBAF-9B90564B2FEC
relevant to the Platform or any software, documentation or data related to the Platform; (ii)
modify, translate, or create derivative works based on the Platform; (iii) use Platform in any
manner to assist or take part in the development, marketing or sale of a product potentially
competitive with such Platform. For the avoidance of doubt, all aspects of Platform are the
Confidential Information of Presencelearning, and Customer will comply with Section 5.
2.5 . Ownership. Presencelearning will have and retain sole and exclusive ownership of, and all right,
title and interest in the Platform .
3. Fees and Payment Terms.
3.1. Fees; Payment . Presencelearning shall invoice Customer for the services and Customer shall pay
all undisputed amounts due within thirty (30) days of the invoi ce date. Outstanding balances
shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month
or the maximum rate permitted by applicable law, from due date until date paid, plu s
Presencelearning's reasonable costs of collection.
3.2. Clinical Services. The Service Order will list the clinical discipline of the services Customer
purchases ("Clinical Services") referenced as SLP Services , SLP Supervi sion, OT Services, OT
Supervision, BMH Services. These Clinical Services may be purchased as an Hourly Service or
Annual Service.
3.3 . Hourly Service Fee. If applicable, the Service Order may specify an Hourly Service Fee, for a
particular discipline (SLP, OT, BMH) which is based on a per hour, per Clinician pricing.
3.4. Annual Service Fee . If applicable, the Service Order may specify an Annual Service Fee, for a
particular discipline (SLP , OT, BMH) which is based on the student group size and therapy hours
(the assumptions will be li sted). If Customer makes any changes, Pre sencelearning may make a
pricing adjustment to the Annual Service Fee .
3.5. Student Administrative Fee . If applicable, the Service Order may specify Student Administrative
Fee which will be billed in the first invoice of the Service Order Term and any Renewal Term on
a per student, per service basi s. At any time during the Service Order Term, if students are added
to receive a Service, Customer will be billed Student Administrative Fee for those students during
the month the services start.
3.6 . Monthly Commitment. If applicable, the Service Order may specify a minimum dollar payment
due each month during the Service Order Term ("Monthly Commitment"), excluding any
Psychoeducational Assessment minimums. A Monthly Commitment fee will not be charged for
(i) the month in which Services begin, or (ii) the last month of Services . If Cu stomer's fees are less
than the Monthly commitment, Cu stomer will be billed the difference on a quarterly basis . For
the month(s) exempt from a Monthly Commitment, Customers shall pay the total fees incurred
for the month.
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3.7. Assessments Commitment. If applicable, the Service Order may specify the minimum number of
as sess ments (excluding Psychoeducational Assess ments) for which payment is due at the end of
the Service Order Term . Screenings , review of records , and evaluations may count towards this
Assess ment Commitment. At the end of the Service Order Term , Pre se ncelearning will reconcile
the Assessment Commitment with actual Assess ments given, and Cu stomer will be invoiced for
the difference if the Assess ment Commitment was not met.
3.8. Psychoeducational Assessments Commitment. If applicable, the Service Order may spe cify a
minimum fee for psychoeducational as sess ments for which payment is due at the end of the
Service Order Term . At the end of the Service Order Term, Presencelearning will recon ci le the
Psychoeducational Assessment Commitment fee with actual Psychoeducational Asses sment fee s
billed, and Customer will be invoice d for the difference if the Psychoeducational Assess ment
Commitment fee was not met.
3.9 . Unplanned Student Abse nce Fee . If Customer cancels a session with le ss than 24 hours advance
notice or the session does not occur due to a student absence (" Unplanned Student Absence" ),
Customer agrees to pay Pre se nce l ea rning the applicable Rate for the duration of the sc heduled
session . If Customer ha s agreed to b e b illed for a minimum number of hours in a period, e.g., one
week, the duration of the session shall be applied toward such min imum for the period in w hich
the session was scheduled to occur.
3.10. Contracted Students . If applicable, the Service Order may specify the number of students for
whom Customer has purchased Services .
3.11. Di sp utes . Customer may dispute an invoice no late r than twenty (20) calendar days from the date
of the invoice . The parties will work together in good faith to r eso lve any disputes as soon as
poss ible. Upon resolution , Customer shall remit the amount owed within ten (10) calendar days .
4 . Presencelearning Materials. Presen celearning owns all rights, title, and interes t , including patent
rights, co pyrights, trade secret rights, and all other in tellectual property ri gh t s of any nature r elating
to the products, materials, Services , designs, know-how, data, software, graphic art, and similar works
authored, created , contributed to, made, conceived o r r ed u ce d to practice, in whole or part, by
Pre sen ce learning or its agent s or affiliates, which ari se out of the performance of Services , exce pt
with regard to materials and intellectual property for which Pre se ncelearning ha s a license to use,
display, host and administe r in provi ding Services. Custo mer agrees to maintain (and not supplem ent,
remove, or mod ify) all copyright, t rade mark, or other proprieta ry notices on any materials utilize d in
providing the Service s. During the Service Order Term , Presencelearning grants Custom er a non
excl usive, limited licen se, to reproduce and distribute the materials sole ly to ass ist in the provision of
Services.
5. Confidentiality.
5.1 . Except as otherwise provided in this Agre eme nt, each party will be maintain the other party's
Confidential Information (as defined below) in strict confidence , will use the other party's
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Confidential Information only for purposes of this Agreement, and will not disclose the other
party's Confidential Information without the other party's prior written consent, provided that
the receiving party may disclose the disclosing party's Confidential Information to the receiving
party's or its affiliates' personnel and contractors who need to know such Confidential
Information and who are bound by confidentiality obligations at lea st as restrictive as those in
this Agreement. If there is a breach of this Section 5, the disc losing party may suffer irreparable
harm and will therefore be entitled to obtain injunctive relief in addition to any other available
rights and remedies.
5.2. "Confidential Information" means the terms of this Agreement and all information, materials,
or technology provided by a party to the other party that is marked as "Confidential" or
"Proprietary," or that, under the circumstances taken as a whole, would be reasonably deemed
to be confidential. "C onfidential Information" does not include information which (i) is or
becom es generally available to the public other than as a re sult of the breach of this Agreement
by the receiving party, (ii) is independently developed by the receiving party, (iii) was ri ghtfully
within the receiving party's pos se ssion prior to disclosure by the disclosing party, (iv) is received
from a third party which was not bound by a confidentiality obligation with respect to such
information, or (v) is legally required to be disclosed, provided that the re ce iving party will notify
the disclosing party before disclosing the Confidential Information.
6 . Data and Pr ivacy .
6.1. Customer Data. Customer retain s all ri ghts, in and to all d ata, fil es, information, provided by
Customer or Use r to Pre se ncelearning.
6.2. State Privacy Law s. Pre se nce learning is, and at all times ha s bee n, in m at erial compliance will
all applicable state laws, rules, and regulations relatin g to privacy, d ata protection and the
collection and use of personal information collected, use d and held for use by the
P re se nc el ea rn i ng.
6.3. FERPA. In providing Services or performance under this Agreement, Pre se ncelea rnin g may have
access to education r eco rd s ("FERPA Records") that are defin ed in and subject to th e Family
Educational Ri g hts and Privacy Act, 20 U.S.C. 12 32g , et seq . and related regul ations ("FERPA").
To the extent that Pre se nce learning ha s access to FERPA Records, Presencelearning is dee med
a "sc hool official" and may u se FER PA Reco rd s so lely for the spe cific "legitimate educational
purposes" as defined under FERPA.
6.3.1. Presencelea rnin g repr ese nts, warrants, and agrees that Presencelearning will : (1) hold
FERPA Record s in strict confidence and will not use or disclose FERPA Record s without
th e prior written consent of the appropriate parent or eligible student, except as (a)
permitted or required by this Agreement, (b) required by law, or (c) otherwise
authorized by Customer in writing; (2) sa feguard FERPA Re co rd s according to
commercially rea so nable administrative, physical and technical standards that are no
le ss ri gorou s than the standards by which Presencelearning protect s its own
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co nfidential information; and (3) continually monitor its operations and take any action
necessary to assure that FERPA Records are safeguarded in accordance with the terms
of this Agreement. Presencelearning policy may be accessed on
https ://www.presencelearning.com/about/ ferpa /.
6.3.2. If any person(s) seeks access to any FERPA Records, Presencelearning will immediately
inform Cus t omer of such request in writing. Presencelearning shall not disclose any
FERPA Records without the prior written authorization of an authorized representative
of Customer; if the request for access is pursuant to a court order or lawfully issued
subpoena, Presencelearning shall immediately provide Customer with a copy of such
court order or subpoena, and mu st co mply with FER PA notification requirements to the
parents and/or eligible st udents.
6.3.3. If Presencelearning experiences a securi t y breach concerning any FERPA Record,
Presencelearning will notify Customer in a timely manner and take immediate steps to
limit and mitigate such security breach as reasonably as possible.
6.3.4. Upon expiration or termination of this Agreement, Presencelearning shall return
and/or destroy all FERPA Records received pursuant to this Agreement as directed by
Customer, provided that Presencelearning shall not be required to destroy copies of
any computer records or files containing the FERPA Records which have been
created pursuant to automatic archiving or back-up procedures and which cannot
reasonably be deleted.
6.4. HIP AA. Student records that are disclosed to Presencelearning by Customer and maintained
within Platform are by definition "edu ca tion records" under FERPA and not "protected health
information" under the Hea lth In surance Portability and Accountability Act of 1996 (HIPAA).
Because student health information in education records is protected by FERPA, the HIPAA
Privacy Rule excludes such information from its coverage. See the exception paragraph (2)(i) in
the definition of "protected health information" in the HIPAA Privacy Rule at 45 CFR § 160.103.
See, also, Joint Guidance on the Application of the Family Educational Rights and Privacy Act
(FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to Student
Health Record s, USED and U.S. Department of Health and Human Services (November 2008).
7. Clinicians.
7 .1. Credentials and Clearances. For eac h Clinician Presencelearning assigned to Customer,
Presencelearning ha s co ll ected and verified clinicians' credentials in accordance with the state
law of Customer's state, including state clinician li cense. If Customer requ ires additional
certification such as Board of Edu ca tion certifications, then Customer must inform
Presencelearning and provide all necessary information or instructions in a timely manner.
7.2. Ba ckgro und Checks. Presencelearning conducts ba ckgro und checks, which include crimina l
ba ckgro und checks and Registered Sex Offender registry checks, on all its employees and
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Clinicians, and Presencelearning refre shes such checks on the Clinicians on a yearly ba sis. If
Customer requires additional clearance s such as FBI Fingerprinting by the sc hool district,
Customer will provide all necessary information or instructions in a t i mely manner to allow
Pre sencelearn ing to convey in structions to Clinicians .
8 . Indemnification.
8.1. Indemnification by Customer. Unle ss prohibited by law, Cu stomer shall in demnify and hold
Presencelearning harmless again st any and all claims, demands, dama ges , l i abil ities and cost s
(including attorney's fees) incurred by Presencelearning which result from, or arise in co nnection
with, any breach of Customer's obligations or representations under this Agreement and/or
negligent act or omiss ion or willful misconduct of Customer, its agents, or employees, pertaining
to its activities and obligations under this Agreement.
8.2 . Indemnification by Pre sencelearning. Presencelearning shall indemnify and hold Cu stom er ,
harmless again st any and all claims, demands, damages , liabilities and costs (including attorney's
fees) in curred by Customer w hich directly or indirectly re su lt from, or arise in co nnection with,
any negligent act or omission or willful misco nduct of Presencelearning, its agents , or
employees, pertaining to its activities and obligation s under this Agreement.
8 .3. Conditions of Indemnification. The obligations se t forth in Sections 8.1 and 8.2 are conditioned
upon: (a) prompt written notice by the indemnified party to the i ndemnifyi ng party of any claim,
action or demand for which indemnity is claimed; (b) comp le te control of the defense and
se ttlement thereof by the indemnifying party, provided that no se ttlement of an in demn ified
claim shall be made without the con se nt of the indemnified party, such con se nt not to be
unrea so nably withheld or delayed; and (c) reasonable cooperation by the indemnified party in
the defense as the indemn ifying party may request. The indemnified party shall ha ve the r ight
to participate in the defense against the indemnified claim s with counsel of its choice at it s own
expens e.
9 . Limitation of Liability. In no event will Pre se ncelearning be liable for an y incid ental damages,
con sequential damage s, or any lost profits arising from or r elating to this Agreement or to the
Se rv ices, w hether in contract or tort or otherwise, even if Pre se nce l earning knew o r sho uld ha ve
known of the pos sibility of such damages. Pre se ncelearning's cumu la t ive liabil ity re la ting to this
Agreement will not exceed the actual fees paid by Customer to Pre se n celea rnin g during the school
year for three (3) months immediately preceding the date on which a cla i m is ma de ; provide d that
such amount shall und er no circumstances exceed $10,000. Customer acknowledges that this
Agreement reflects an adequate and acceptable alloca tion of risk and that in the absen ce of the
foregoing limitations Pre se ncelearning would not enter into this Agreement.
10. Non-Solicitation . Customer shall not, during the Term of this Agreement and for one (1) year
thereafter, directly or indirectly solicit, induce, or attempt to ind uce an y Presencelearning employee
or its clinicians without Pre se ncelearning's prior written consent. Customer should co nta ct the
Pre se ncelearning account manager with any inquiries concerning the aforementioned.
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11. Term and Termination .
11.1. Term. This Agreement shall be in effect from the date of the last signature until terminated by
either party with forty-five (45) days prior written notice .
11.2. Service Order Term. Each Service Order will specify a term for which services begin and end .
11.3. Termination for breach. Presencelearning may, without prejudice to any other remedie s
available to it by law, terminate this Agreement immediately if Customer commits a material
breach of this Agreement, and the breach is not cured within fifteen {15) days after re ceipt of
written notice of the breach.
11.4. Effects of Termination. Upon the expiration or termination of this Agreement for any rea son, all
amounts owed to Pre sencelearning under this Agreement, which accrued before such
termination, or expiration will be immediately due and payable .
12. Disclaimer of Warranties. Except as otherwise set out herein, the Services are provided "as is " without
any warranty and, except as provided herein, Pre sencelearning expressly disclaims any and all
warranties, express, implied, or statutory, including warranties of title, non-infringement,
merchantability, and fitness for a particular purpose .
13. Student Benchmarking Data . If Cu stomer collects benchmarking data at the individual or school level
in relation to Service s provided by Pres encelearning, Cu stomer will provide Pre sencelearning a copy
of such benchmarking data. To the extent not prohibited by Section 6 of this Agreement or appli cab le
law, Presencelearning may store indefinitely, use and publish deidentified ben chmarking data.
14. Customer Representations and Warranties.
14.1 . Cu stomer hereby represents and warrants to Presencelearning that the undersigned ha s the
right, power, and authority to enter into this Agreement on behalf of Cu stomer.
14.2 . Customer hereby represents and warrants that, prior to receiving Service s, it will provide
Pre sencelearning with the conditions desc ribed in the Environment, Equipment and Supervision
Specifications, avai lable at https://www.presencelearning.com/tc/eg-spec, and other conditions
as set forth by Presencelearn ing . Any de lay in Cu stomer's ability to provide the specified
condition s will delay the ability for Pre sencelearning to provide the Services .
14.3 . Customer hereby represents and warrants that it will comply with any appli cable law concerning
Services, including but not limited to obtaining informed parental consent s where required.
14.4. Customer represents that it ha s verifi ed the accuracy, completeness and appropriaten ess of all
Students' medica l, educational, demographic, discip lin ary, and therapeutic-related information
("Records") prior to Cu stomer 's providing Pre sencelearning with acc ess to such Record s.
Cu stomer acknowledges and agrees that the professiona l duty to educate, supervise and treat
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the Students lies solely with Customer, and that the provisi on of Services in no way replaces or
substitutes for the professional judgment of Customer.
14 .5 . Customer acknowledges that Pre se ncelea rning is not a healthcare provider, and that it cannot
and does not independently revie w or verify the medical accuracy or completeness of Records
made available to it pursuant to this Agreement.
15. Presencelearning Representations and Warranties. Presencelearning r epresents and warrants to
Customer as follows the undersigned ha s the right, power and authority to ente r into this Agreement
on behalf of Pre sencelearning.
16. Research; Promotional Materials. The parties agree that mutual consent is required for publication
or distribution of any re se arch and/or case studies mentioning either party. However, Customer
grants to Pre se ncelearning the limited right to use Customer's name, logo and/or other marks for the
sole purpose of listing Customer as a user of the applicable Service in Pre se ncelea rning promotional
materials. Customer can revoke this grant at any time with fifteen (15) da ys written request.
17. Independent Contractor. The Parties are independent contractors, and no agency, partnership,
fran chi se, joint venture, or employment relationship is intended or created by this Agreement.
Neither party shall be deemed to be an employee or legal representative of the ot her nor shall either
party have any right or authority to create any obligation on behalf of the other party.
18. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration administered by the American Arbitration Association ("AAA ")
in acco rdance with its Commercial Arbitration Rule s, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration proceedings shall
be confide ntial and conducted in the English language before a single neutral arbitrator to be selected
by AAA . The place of arbitration shall be State the Customer is loca t ed.
19. Governing Law. This Agreement will be governed by th e laws of the State the Customer is locate d .
20. Miscellaneous. The waiver of a breach of any term hereof will in no way be construed as a waiver of
any other term or breach hereof. If any provision of this Agreement is held by a co urt of competent
jurisdiction to be unenforceable, the remaining provisions of th is Agreement will remain in full force
and effect. The headings in this Agreement do not affect its interpretation.
21. Assignment. Pre sen celearning's rights and obligations under this Agreement will bind and inure to
the ben efit of its successors and assig ns.
22 . Survival. The parties obligations under Sections 2.4, 2 .5, 9, 10, 16, and 18 will survive any expiration
or t ermination of this Agreement.
23. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations
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(except for the payment of money) resulting from any cond iti on beyond its reasonable control,
including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood, epidemics,
pandemics, or other acts of God, labor conditions, power failure, and Internet disturbances.
24. Notices. All notices relating to this Agreement must be in writing, sen t by postage prepaid first -class
mail, courier service, or via email: To Presencelearning, Inc., 530 Seventh Ave, Suite 407, New York,
NY 10018, Attn: Legal Department or via email at legal@presencelearning .com. To licensee: Notices
will be sent to the address provided to licensor, or by other legally acceptable means.
25. Counterparts; Electronic Signatures. This Agreement may be executed in one or more co unterparts,
each of which shall be deemed to be an original but all of which together shall constitute one and the
same instrument and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party. A facsimile, PDF or other electro ni c sig nature of
this Agreement shall be valid and ha ve the same force and effect as a manually signed original.
26. Entire Agreement. This Agreement along with any corresponding Service Orders constitutes the
entire agreement between the Parties regarding the Services and supersedes all prior or
co ntemporaneous agreements and understandings between the Parties relating to the Services. This
Agreement may on ly be amended by the mutual written consent of the Parties.
27. Customer's Additional terms:
27.1 . STUDENT DATA PRIVACY AND SECURITY: Pre sencelearning covenants and represents as foll ows:
(i) Presencelearning agrees that all information regarding Services, including, but not limited to,
the stude nt's identity and the nature of service s rendered, sha ll be confident ial a nd comply with
all federal and state laws; (ii) Presencelearning represents and warrants that it has in place
Administrative Security, Phy sica l Security, and logical Security controls to protect from a Data
Breach or unauthorized data disclo sure; (iii) Pre sencelearning agrees to r estrict access to
Per sonally Identifiable I nformation (Pll) to only authorized staff who require such access to
perform their assigned duties; (iv) Pre sencelearning shall not use Student Data and Pll for
secondary uses including, but not li mited to, sa les, marketing, or advertising in any manner other
than in an anonymized and aggregate format; (v) Pre sen celearning agrees to indemnify and hold
harmless the School Di strict from any liability arising out of noncompliance with state and federal
law regarding Student Data Privacy and Security; and (vi) Pre sencelearning represe nts and
warrants that it ha s an appropriate records retention schedu le and/or policy for the destruction
of data .
27.2. PENALTIES FOR PRESENCELEARNING 'S FAILURE TO COMP LY WITH STUDENT DATA PRIVACY AND
SECUR ITY :
Penalties in case of non -compliance by Presencelearning with state and federal law or its
covenant s and representation s regarding Student Data Priva cy and Security, as set forth in this
Agreement, will be ass essed at the rea sonable discretion of School District's Board of Trustees
and may include, but are not l imited to: (i) Im mediate termination of any contracts with the
School District without cause and for convenience, without recourse by Presencelearning; (ii) a
two-year ban on Presencelearning's abi lity to contract and provide services to the Schoo l
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District; and (iii) any other sanction the School Di strict's Board of Tru stees deems proper and
appropriate under the circumstances.
27.3. DEFINITIONS
"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 proce dures, user access control, background
check s, performance evaluations, and disa ster recovery, contingency, and emergency plan s.
These measures ensure that authorized users know and understand how to properly use the
system in order to mainta in security of data.
"Data Breach" is the unauthorized acquisition of Pll. "Logical Security" consists of software
safeguards for an organization's systems, including user identification and pa ssword access,
authenticating, acce ss 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 (Pll)" includes : a student's name; the name of a student's
family; the student's address; the students' social sec urity number; a student education unique
identification number or biometric record; or othe r indirect identifi ers 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" describe s security measure s 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 Pll to an unauthori ze d person or untrusted environment.
IN WITNESS WHEREOF , the parties have executed this Agreement as of the Effect ive Date.
Presencelearning, Inc . Customer
DocuSlgned by:
By: •ti1114 Q11lb._4
EA92JJE59F9F$ji an Duffey Name :~-------------
special education directorTitle: ______________
2020-07-27 Date: _______________
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Date :~------------