HomeMy WebLinkAboutOverture LearningEDUCATIO AL SERVICES AGREEMENT
This EDUCATIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and
between Bonneville Joint School District No. 93 ("District"), and Overture Learning, LLC, an Idaho
limited liability company ("Overture Learning"), as of the date signed by the Parties below. This
Agreement s hall replace and supersede all prior agreements, oral or written, as of the effective date
hereof.
I . Terms of Contract
a. Effective Date -This Agreement shall commence as of July I, 2020 for the 2020-2021
academic year.
b. Term and Renewal -This agreement shall be for a term of one (I) academic year beginning on
the Effective Date and ending on June 30th of the calendar year following. This agreement shall
automatically ren ew for an additional term of one academic year (July I , 2021 through June 30,
2022) if not otherwise terminated by either party by written notification of intent to terminate
given to the other party no later than March I st of any applicable academic year.
2. Description of Responsibilities for Overture Learning, LLC
a. Curriculum and Progress Monitoring -Provide a comprehensive curriculum according to
District 93 Board Policies 2100, 2520 and 2540 to parents and students enrolled in the District
through Overture Learning. Provide progress reporting and testing requirements that meet
District and State standards. Update program requirements and practices when necessary to
better comply with District and State Standards and communicate changes to the District,
teachers, and parents.
b. Enrollment and Registration -Enroll students in grades K-8 as distance le arning students
registered with the district. New student(s) may be added to replace student(s) who cancel
registration in the program during the academic year in an effort to allow enrollment numbers
to remain constant. The District may allow or provide exemptions to the enrollment limit by
providing written notification to Overture Learning. This written notification can be in the form
of an email.
c. Learning Management System -Maintain an online Learning Management System Portal to
a llo w parents and students to provide progress and submissions for mentor teacher review .
d. Training and Support for District Teachers and Personnel -Provide needed training to District
employees and teachers necessar for using Overture Learning 's online system. Provide
ongoing suppo1t and training to teachers through regular teacher meetings .
e. Parent and Student Orientation -Provide parents a handbook outlining program framework.
Give parents a program overview, includin g requirements, processes, and training on use of
Learning Management System. Continue support for parents regarding LMS , reimbursem e nts ,
etc. throughout the academic year .
f. Communication with Enrolled Parents and Students -Provide regular and timely
communication to parents regardi ng program changes, LMS updates , events, etc. Manage an
online forum for parents and teachers to reference regarding common questions about Overture
Overture Leaming, LLC Services Agreement
Learning's program. Maintain a periodic email newsletter for parents and teachers with
announcements and communications. Provide proofreading and feedback on District
communications to parents.
g. Progress Reports -Maintain progress reports of each student's progress and submissions and
provide access for teachers/mentors and the District to review such progress and submissions.
h . Expenses -Overture Learning is solely responsible for the expenses of its services and
responsibilities under this Agreement.
i. Confidentiality of Records -Maintain the confidentiality of personnel, students, and other
records in accordance with applicable state law. Overture Learning is not responsible to
maintain records for students once they have discontinued enrollment in the program.
3. · Description of Responsibilities of the District
a. General Oversight -The District is responsible for the monitoring of Overture Learning's
performance and compliance with the terms of this Agreement and implementation of
procedures consistent with applicable District policies.
b . Registration and Enrollment -Provide registration requirements including links to online
registration forms and yearly Enrollment Deadline to Overture Learning and interested families.
1. Establish an enrollment limit either by providing a hard number of enrollments permitted
for the academic year or by providing an enrollment deadline, allowing all students who
register by the enrollment deadline. The enrollment limit for the 2020-2021 school year
will be 425 students. The District may adjust the enrollment limit at any time by providing
notice to Overture Learning via email.
ii . Review, approve, and maintain registration information. ln cases where submitted
registration information is incomplete or additional information is required , the District has
the primary responsibility of working with parents to submit all required information and
forms. Provide Overture Learning with necessary enrollment information on all students
registered in Overture Learning's program within 3 business days of registration.
c. Teachers and Mentoring -Provide teachers licen sed according to the requirements of the state
to serve as mentors to parents of students . Teachers will assi st in providing suggestions and
guidance to parents in areas of curriculum, educational materials/resources, and methods of
teaching in an effort to assist parents in the education of their student(s). Teachers will regularly
review student educational plans and progress reports with parents. Teachers will meet
regularly with an Overture Learning administrator or another teacher designated as a Mentor
Teacher to receive additional training, discuss responsibilities and review their assigned
students' progress .
d. Parent and Student On boarding -Licensed teachers will meet with parents and provide
mentoring and assist parents in finalizing curriculum choices. Teachers will then set up students
inLMS.
e. State Required Assessments and Testing -Coordinate, schedule, and arrange for administration
of any and all state required testing.
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f. Special Education -The District will provide special education and 504 services to any
student(s) who do or may qualify for such services in accordance with federal and state
requirements. The District will be responsible for the expenses of providing these services
(such as speech, physical , and/or occupational therapy) including assessments and other
evaluations so long as the total number of students receiving special education and 504 services
does not exceed 10% of the total number of students enrolled in the program. If this number
exceeds I 0%, the District and Overture Learning will reevaluate this provision and adjust it as
needed by way of written amendment to this Agreement.
g. Transcripts , Cumulative Files and Grade Reports -The District is responsible to request, obtain ,
store, and manage student transcripts and files. The District is responsible to maintain any
records required beyond or outs ide of the current academic year.
4. Fees, Invoicing, and Payment
a. Fees -Based on the circumstances described , fees will be charged on a per student basis as
follows:
1. For each student enrolled in Overture Learning by the enrollment date provided in Section
3b , the District shall pay Overture Learning an annual amount of $2,500 per student in
grades 1-8 and $1 ,250 per K indergarten student. In the event that one of these students
cancels enrollment mid-year, Overture may replace that student with another student as
described in section 2b and the District will not be required to pay an additional fee.
ii. For each student enrolled in Overture Learning after the enrollment date provided in
Section 3b and approved by the District as an exception to the enrollment limit described
in Section 3b.i, the District shall pay Overture Learning an amount of$250 initial
enrollment fee plus $250 for each full month remaining in the school year
(September-May) for students in grades 1-8 and a $125 initial enrollment fee plus $125 for
each month remaining in the school year (September-May) for students in Kindergarten.
Mid-month enrollments will be prorated.
b. Invoicing and Payment -Overture Learning will provide an invoice for 60% of this total
amount on or about July l for students enrolled by this date. Additional invoices for 60% of
total enrollment fees will be provided in August, September and October for additional students
enrolled during each month up until the enrollment date in Section 4. Overture Learning will
provide invoices for the remainjng 40% of this total amount as follows: monthly from January
through April ( 10% per month). The monthly invoice amount will be adjusted based on any
students who cancel enrollment prior to this date. Invoices will be paid within 14 calendar days
of the invoice date . For students registering after the Enrollment Deadline as described in
section 4a.ii , Overture Learning will provide an invoice for 60% of the total prorated annual fee
upon receiving the student's regi stration information and the remaining 40% will be added to
the January through April invoices in increments of l 0% per month, with any remaining
balances being reconciled in the April invoice.
c . Interest -The District agrees to pay as invoiced by the dates mentioned above. The District
agrees to pay interest in the amo unt of one percent ( 1 %) per month ( 12% annually) on any
amounts more than l 0 calendar days overdue. In the event that any action is undertaken to
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collect amounts due hereunder, the District agrees to pay, in addition to fees and interest, all
costs of such collection action .
d. Location of Payment -All payments made hereunder will be made payable to Ove1ture
Learning, LLC or its designated Affiliate at the address set forth herein or other such address
provided by Overture Learning in writing.
5 . Relationship of Parties -Ove1ture Learning is not a division or any part of the District. The
District is a body corporate authorized under State law and is not a division or any part of Overture
Learning. The relationship between the parties was developed and entered into through arms-length
negotiations and is based solely on the terms of this Agreement. Overture Learning wi II operate as
an independent contractor to the District and will be responsible for delivering the services required
by this Agreement. Nothing herein will be construed to create a paitnership or joint venture by or
between the District and Overture Learning. Neither party will be the agent of the other except to
the extent otherwise specifically provided by this Agreement. Neither party will represent to third
parties any ability to bind the other to any duty imposed by contract, other than this Agreement or
as otherwise agreed in writing .
6 . Proprietary Information -Except for items that are readily available to educational entities or in
the public domain , all of the materials, methods , lists, curricula, names, processes, technologies,
trademarks, trade names and other items, tangible or intangible, registered or unregistered, used by
Overture Learning, LLC in delivery of the Program services are the property of Ove1ture Learning,
LLC or used by Overture Learning, LLC under authority of the legal owner thereof and shall be
considered confidential or proprietary information ("Proprietary Information ") Neither the District,
nor its owners, directors , employees, agents or affiliates shall have any right or authority to use the
Proprietary Information for its own purpose by virtue of this Agreement, both during or after the
termination or expiration of this Agreement.
7. Termination
a. Termination for Breach -Either party may terminate this Agreement at any time for cause with
ninety (90) days' prior written notice to the other party. Termination for cause may be used if a
pai·ty breaches any material term or fails to fulfill any material condition , term , provision,
representation, warranty , covenant or obligation contained in this Agreement and fails to cure
the same within ninety (90) days after receiving written notification from the terminating party.
Upon termination of this Agreement pursuant to this Section, the non-breaching party shall be
entitled to seek any remedies to which it shall be entitled at law or in equity.
b. Termination Upon Loss of Authority -This Agreement will terminate immediately upon the
termination of the District's operating authority .
c. Termination in the Event of Certain Changes in Policies of the State Board of Education or the
District. Overture Learning may terminate this Agreement effective immediately upon written
notice to District in the event that the State Board of Education or District adopts or amends a
policy, in each case without the prior written consent of Ove1ture Learning, the effect of which
could reasonably be determined to require Overture Learning to materially increase the level of
services required hereunder or which materially increases the financial risk to Overture
Learning arising from its performance hereunder.
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d. Change in Applicable Law -If any change in applicab le state law that is enacted after the date
hereof could reasonably be expected to have a material adverse effect on the ability of either
party to carry out its obligations hereunder, such party , upon written notice to the other party
(which notice may be given at any time following enactment of such change in applicable state
law , whether or not such change is effective on the date of s uch enactment or is effective at a
later date), may request renego tiation of this Agreement. Such renegotiation will be undertaken
in good faith . l fthe parties are u nable to renegotiate and agree upon revised terms within one
hundred twenty ( 120) days after such notice of renegotiation, then either party may provide
ninety (90) day written notice of termination of this Agreement.
e. Effects of Termination:
1. Except as otherwise agreed by the parties in writing, termination shall not relieve either
party of any obligation for payments due to the other party as of the date of termination or
other obligations that continue upon termination as provided in this Agreement.
ii. In the event this Agreement is terminated for a breach by Overture Learning prior to the
end of a given academic year, the parties shall calculate the Fee as of the end of such
academic year as if this A g reement had not been terminated. The patties shall then prorate
those amounts to the date of termination of this Agreement, and the District shall pay
Ove1ture Learning the prorated amount within 30 days of the effective date of termination.
111. Jn the event this Agreement is terminated by the District for any reason other than a breach
by Ove1ture Learning prior to the end of its Term, the District shall pay to Overture
Learning any fees due under the current term of this Agreement. Such amount shall be due
and payable within 60 day s of the effective date of termination. Late payments shall be
subject to interest charges as identified in Section 5( c) above.
8. Confidentiality of Records -As required by the Idaho Student Data Accessibility, Transparency,
and Accountability Act of2014, Idaho Code Title 33 , Section 133 (the "Act"), with respect to the
sharing of personally identifiable information ("PII") from Student Data, (as defined below)
released to Ove1ture Learning by the District for purpose of providing web-based products and
services as purchased by the Di strict:
a . Overture Learning agrees to comply with all applicable Idaho state and federal laws pe1taining
to the confidentiality and security of PII , including but not limited to the Family Educati o nal
Rights and Privacy Act (FERPA). 20U.S.C.§1232g and its implementing regulations and the
Act.
b. Overture Learning guarantees to have in place appropriate Administrative Security , Physical
Security , and Logical Security controls and measures to protect from a Data Breach or
unauthorized data disclosure;
c. Overture Learning agrees to notify the District as soon as possible and without unreasonable
delay after Overture Learning di scovers that a Data Breach or unauthorized data disclosure has
occurred, in accordance with ldaho Code 28-S 1-1 OS .
d . Ove1ture Learning will restrict access to PII, as defined below, to the authorized staff (including
employees, contractors, and agents) of the vendor who require such access to perform their
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assigned duties and who are under contractual obligations of confidentiality to Overture
Learning;
e. Overture Learning is prohibited from any secondary use of personally identifiable information ,
as defined below, including sales , marketing or advertising;
f. Upon written request by the District following the termination of the subscription to the
web-based products and services provided by Overture Learning, all records containing PII
provided by the District will be destroyed or returned to the District within sixty (60) days from
the date of request; otherwise Overture Learning will destroy such PH records within a
commercially reasonable period of time.
g. Overture Learning agrees to accept the following penalties for non-compliance with these
provisions resulting in a Violation under the Act:
The District's option and right to immediate termination of web-based products and services.
Upon receipt of written notice from the District under this provision , Overture Learning will
refund to the District all fees paid to Overture Learning for the affected web-based products and
services in the current fiscal year, less the amount prorated for months of use prior to the
Violation;
h. Overture Learning will indemnify and hold harmless the District and its employees from any
and all third-party claims arising from Overture Learning's breach of these terms.
i. Overture Learning is not responsible to maintain records for students once they have
discontinued enrollment in the program.
J . Definitions: Regarding section 4 of this agreement, the following definitions are included:
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 (PlI) includes: a student's name; the name of a student 's
family ; the student's address ; the students' 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
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records.
Unauthorized Data Disclosure is the intentional or unintentional release of PII to an
unauthorized person or untrusted environment.
9. Limitation on Liability -Except in connection with its indemnity obligations , neither party shall
be liable for any indirect, consequential , exemplary, incidental, special, or punitive damages
including without limitation lo st savings , lost funding , lost revenues , lost sales , lost profits , lost
opportunity costs, business intenuption, delay damages, damages for third party claims, lost or
destroyed data, or any other economic loss , of any type or nature or for events or circumstances
beyond the party 's control , even if the party has been advised of the possibility of such damages or
loss.
I 0. Assignment -Except as otherwise provided in this Agreement, neither party may assign or delegate
any rights or obligations under this Agreement without the prior written consent of the other party.
Except as prohibited by applicable state law , Overture Learning may assign all of its rights and
obligations under this Agreement to any person or entity that controls Overture Learning, is
controlled by Overture Learning, or is under common control with Overture Learning, or to any
successor in interest that acquires all or substantially all of the assets of Overture Learning.
Overture Learning, upon notice tot e Di strict, may delegate the performance of its duties hereunder
to any person or entity but shall remain responsible for the performance, in accordance with the
terms of this Agreement, of any services performed by its delegates, except notice shall not be
required when Overture Learning delegates its obligation to provide materials or curricula to third
paities in the normal course of business.
11. Indemnity -The party charged with indemnifying and/or defending under thi s Section (the
"Indemnifying Party") shall conduct the defense in any such third patty action arising as described
herein and the party claiming the benefits of this Section (the "Indemnified Pai·ty") promises to
cooperate with such defense, provided the Indemnifying Party reasonably consu lts with the
Indemnified Party on any settlement (subject to the consent requirement in the last sentence of this
paragraph). Notwithstanding the foregoing, the Indemnified Party may, at its own expense, assist in
s uch defense if it so chooses, provided that the Indemnifying Patty shall be entitled to control such
defense and all negotiations relative to the settle ment of any such claim. Any settlement that would
admit any liabili ty on the part of the Indemnified Party shall require such Indemnified Party's prior
written consent.
a. Indemnification of the District -Overture Learning agrees to indemnify , defend, and save and
hold the District and its employees, officers, directors, trustees , subcontractors, and agents, their
respective successors and permitted assigns, harmless against any and all claims, demands,
suits, or other forms of liability including without limitation costs and reasonable attorneys' fees
(each a "Claim") that may arise out of, or by reaso n of, any (a) breach of any representation or
warranty, covenant or agreement made or to be performed by Overture Leai·ning pursuant to
this Agreement, (b) noncompliance by Overture Leai·ning with any Applicable Law in
connection with District's operatio ns , but excluding any claims that arise from conduct
undertaken in accordance with the District's instructions, procedures or written policies or in
accordance with the written policies of the State Board of Education , except where such
instructions arise from and are in accordance with specific advice or explicit recommendations
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provided by Overture Learning, and (c) act or omission of Overture Learning or any of its
employees, officers, directors, trustees, subcontractors or agents in connection with its
performances, limitations and obligations hereunder that results in injury , death , or loss to
person or property except to the extent any Claim arises out of actions or omissions of the
District.
b. Indemnification of Overture Learning -The District agrees to indemnify , defend , and save and
hold Overture Learning and each affiliate of Overture Learning and all of their respective
employees , officers , directors, trustees, subcontractors , and agents, their respective successors
and permitted assigns, harmless against any and all claims that may arise out of, or by reason
of, any (a) breach or any representation or warranty, covenant or agreement made or to be
performed by the District pursuant to this Agreement, (b) noncompliance by the District with
any Applicable Law in connection with District's operations, and (c) act or omission of the
District or any of its employees, officers, directors , trustees, subcontractors or agents in
connection with the District's operations that results in injury , death , or loss to person or
property except to the extent any Claims arise out of actions or omissions of Overture Learning.
c. Insurance -Each party shall carry appropriate insurance, including general liability , with
minimum coverages and limits as required from time to time for
governmental/quasi-governmental entities (currently $1 ,000,000 per occurrence/$3 ,000 ,000
aggregate) and workers' compensation coverage in amounts no le ss than required by law .
12. Representations and Warranties
a. Overture Learning hereby represents and warrants to the District:
1. Organization and Good Standing -Overture Learning is a limited liability company duly
organized, validly existing, and in good standing under the law of the State of Idaho.
11. Authorized to Conduct Business -Overture Learning is and at all times shall be registered
and authorized to do business in the State of Idaho.
iii . Compliance of Educational Products and Services with applicable law -Educational
products and services provided by Overture Learning, LLC in fulfillment of its
responsibilities under this Agreement comply with, and shall at all times during the term of
this Agreement, comply with Applicable Law, including the standards for curriculum as
issued by the State Board of Education.
1v. Power and Authority -Overture Learning has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement has been
duly authorized and executed by Overture Learning and constitutes the valid and legally
binding obligation of Overture Learning, enforceable against Overture Learning in
accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium , fraudulent conveyance, and other laws of general
applicability relating to or affecting creditors' rights and by general principles of equity.
b. The District hereby represents and warrants to Overture Learning:
1. The District is a public school entity in the State of Idaho.
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11. Power and Authority -The Di strict has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement has been duly
authorized and executed by the District and constitutes the valid and legally binding
obligation of the District, enforceable against the District in accordance with its terms and
conditions, except as s uch enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium , fraudulent conveyance, and other laws of general applicability
relatin g to or affecting creditors' rights and by general principl es of equity.
111. Authority Under Applicable Law -The District has the authority under Applicable Law (i)
to contract with a corporate entity to perform the services, (ii) to execute, deliver, and
perform this Agreement a nd (ii i) to incur the o bligations provided for under this
Agreement.
1v. Compliance of Educational Program with Applicable Law -The District's educational
program complies with , and the District will ensure that it will continue to comply with the
policies and requirements of the State Board of E ducation and applicable state law .
13. Governing Law-The la ws of the State ofldaho without regard to it s conflict of laws provisions
will govern this Agreement, it s construction , and the determination of any ri g ht s, duties, and
remedies of the parties arising out of or relating to this Agreement.
14. Entire Agreement -This Agreement, including any Addenda and Exhibits hereto (all of which
constitute part of this Agreement), co nstitutes the entire agreement of the parties with respect to the
subject matter hereof, and supersedes a ll previou s oral an d written, and all contemporaneous oral
negotiations, commitments, agreements and understandings relating hereto .
15. Counterparts, Facsimile Transmissions -This Agreement may be executed in counterparts, each
of which will be deemed an original, but both of which will constitute one and the same instrument.
Each party may rel y on facsimile signature pages as if s uch facsimile pages were originals .
16 . Notices -All notices and other communications required by the terms of this Agreement will be in
writing and sent to the parties hereto at the addresses set fo1th below (and such addresses may be
changed upon proper notice to s uch addressees). Notice may be given by (i) certified or registered
mail , postage prepaid, return receipt requested, (ii) reputable overni g ht carrier, postage prepaid, (iii)
facsimile (with confirmation of trans mission by sender's facsimile m ach ine), or (iv) personal
delivery (with written receipt confirming s uch delivery). Notice will be deemed to have been g iven
(i) two days after mailing as described in clauses (i) and (ii) of the foregoing sentence , (ii) on the
da te of personal delivery or (iii) on the date of transmission ofa facsimile ifon a business day
durin g normal business hours (or, if not, the next succeeding business day). E lectronic mail does
not constitute official notice under this Agreement. The addresses of the parties are:
For Overture Learning, LLC : PO Box 182 , Montpelier ID 83254
For District: 3497 N Ammon Rd, Idaho Falls ID 83401
17 . Amendment -This Agreement will not be altered, amended, modified, or supplemented except in a
written document executed by the parties.
18 . Waiver -No waiver of any provision of this Agreement will be effective unles s in writing, nor will
such waiver constitute a waiver of any other provision of this Agreement, nor will such waiver
constitute a continuing waiver unles s otherwise expressly stated.
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19. Severability -The pa1ties intend that each provision hereof constitute a separate agreement
between them. Accordingly , the provisions hereof are severable and in the event that any provision
of this Agreement shall be deemed invalid or unenforceable in any respect by a court of competent
jurisdiction, the remaining provisions hereof will not be affected , but will, s ubj ect to the discretion
of such couit, remain in fu ll force and effect, and any invalid or unenforceable provision will be
deemed , without further action on the part of the parties , amended and limited to the extent
necessary to render the same va lid and enforceab le and reflect the intent of the parties.
20. Successors and Assigns -Thi s Agreement will be binding upon and inure to the benefit of the
pruties and their respective successors and permitted assigns.
21. Survival of Termination -All representations, warrant ies, and indemnities made in this Agreement
will survive termination of thi s Agreement.
By signing below, the Parties acknowledge that they have read and understood and agree to be bound by
all terms and conditions of this Agreement, as well as other applicab le agreements or policies which are
incorporated therein by reference. The signers hereof represent that each is a duly autho ri zed officer,
partner or principal with full authority to enter into this Agreement.
OVERTURE LEARNTNG , LLC
__8=1=2=81=2=0=2~0_ By: James Goostrey
Date Printed Nrune Auilior~~
BONNEVILLE JOINT SCHOOL DISTRICT NO 93
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