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PresenceLearning Consulting Services Agreement
This Consulting Services Agreement ("Agreement"), issued on September 3,2013, is entered into as of
September 91 2013 (the "Effective Date') by and between Presenceleaming, Inc., a Delaware corporation
("Presencelearning") and Bonneville Joint School District 93 with its principal place of operation in
Idaho Falls, ID (together with its agents, employees, and affiliates, "Partnef'). Presencelearning and
Partner are referred to herein individually as a "Party" or collectively as the "Parties."
1. Services. PresenceLearning will provide consulting services to Partner relating to the provision
of supplemental educational services as mandated by State and Federal law to Partner's
students as defined in Exhibit A (the "Services"). The Services will be provided according to the
schedule set forth in Exhibit A. Partner shall provide Presencelearning with the environment,
equipment and supervision necessary for the provision of Services as set forth in Exhibit B.
Fees and Payment Terms. ln consideration for the Services, Partner agrees to pay
PresenceLearning in accordance with the fee schedule set forth on Exhibit A. Allfees generated
from Services performed by Presencelearning shall be considered earned as work is performed.
All fees due hereunder are non-refundable and are not contingent on any additional services to
be provided. Presencelearning shall invoice Partner on a monthly basis and Partner shall pay all
amounts due within thirty (30) days of Presencelearning's invoice date. Outstanding balances
shallaccrue interest at a rate equalto the lesser of one and one half percent (L.S%l per month
or the maximum rate permitted by applicable law, from due date until paid, plus
PresenceLearningls reasonable costs of collection.
Term and Termination. This Agreement shall be in effect as of the Effective Date and shall
continue until the last day of the Partner school year, unless previously terminated in
accordance with the terms of this Section 3 (the "Effective Term"). Either Party may terminate
the Agreement for any reason upon ninety (90) days prior written notice to the other party, so
long as at least 90 days of Services have occurred upon the delivery date of such
notification. Upon the expiration or termination of this Agreement for any reason, all amounts
owed to PresenceLearning under this Agreement, which accrued before such termination, or
expiration will be immediately due and payable. Partner shall have the right to terminate this
Agreement and renegotiate a new Agreement (with 90 days notice) if the ability to successfully
bill Medicaid for online speech and language therapy occurs. ln addition to the post-
termination obligations in this Section 3, Sections 4 and Sections 6 through 11 will survive any
expiration or termination of this Agreement. This agreement shall renew at the end of the
Effective Term for two successive annual terms of the Partner school year unless either party
gives written notice of its intention not to renew 90 days before expiration of the current term.
PresenceLearning Materials. PresenceLearning retains all right, title, and interest to any
materials and intellectual property that it develops or provides as part of Services. partner
agrees to maintain (and not supplement, remove, or modify) all copyright, trademark, or other
proprietary notices on such materials. Provided Partner is not in breach of any term of this
Agreement, PresenceLearning grants Partner a non-exclusive, limited license, which license shall
terminate upon expiration or termination of this Agreement, to reproduce and distribute the
Materials solely to assist in the provision of Services in accordance with the terms herein.
Bonneville loint 5chool District 9t lAn/2}fi' 415.512.9000lwww.PresenceLearning.com
5ll0 tularket Street, 6(h FloorlSan Francisco, CA 94104
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5. Disclaimer of Warranties. The Services are provided "as is" without any warranty and
PresenceLearning expressly disclaims any and all warranties, express, implied, or statutory,
including warranties of title, noninfringement, merchantability, and fitness for a particular
purpose.
limited Guarantee of Therapist Availability. lf this Agreement is not signed by partner within
thirty (30) calendar days of the lssue Date, PresenceLearning does not guarantee sufficient
clinician availability to provide required Services. lf this Agreement is signed by partner within
30 days of the lssue Date, PresenceLearning does guarantee sufficient clinicians provide
required Services.
Limitation of tiability. ln no event will PresenceLearning be liable for any incidental damages,
consequential damages, or any lost profits arising from or relating to this Agreement or to the
Services, whether in contract or tort or otherwise, even if PresenceLearning knew or should
have known of the possibility of such damages. PresenceLearning's cumulative liability relating
to this Agreement will not exceed the lesser of actual fees paid by Partner to presencelearning
during the school year immediately preceding the date on which a claim is made; provided that
such amount shall under no circumstances exceed S1,000, Partner acknowledges that the
Agreement reflects an adequate and acceptable allocation of risk and that in the absence of the
foregoing limitations Contactor would not enter into the Agreement.
Non-Solicitation. Partner shall not, during the term of the Agreement and for one (1) year
thereafter, directly or indirectly solicit, induce, or attempt to induce any Presencelearning
employee or contractor without PresenceLearning's prior written consent.
lndemnification. Partner agrees to indemnify and hold harmless PresenceLearning, its officers,
agents and employees against any and all losses, consequential damages, incidental damages,
injuries, claims, actions, causes of action, judgments or liens arising from, or alleged to have
arisen from the acts or omissions of Partner, its officers, agents, or employees in connection
with the Services,
PresenceLearning agrees to defend, indemnify, and save free and harmless Partner, its officers,
agents and employees against any and all losses, injuries, claims, actions, causes of action,
judgments or liens arising from, or alleged to have arisen from the acts or omissions of
PresenceLearning, its officers, agents, or employees in connection with the Services.
lf any party to this Agreement has a claim made against it for which it has the right to
indemnification hereunder (such party, the "Claiming Party''), then the Claiming party shall
promptly provide the other party hereto (the "tndemnifyine parq/') notice of the
commencement of any such claim; but the omission so to notify the other party will not relieve
it from any liability which it may have to the other party otherwise than under this Agreement.
The foregoing indemnification obligations shall include against any and all expenses (including
attorneys' fees), witness fees, damages, judgments, fines and amounts paid in settlement and
any other amounts that the Claiming Party becomes legally obligated to pay because of any
claim or claims made against or by it in connection with any threatened, pending or completed
Bonneville Joint School District 93 70nl2}]3
415.512.9000 | www.PresencelearninR.com
580 it;larket Sireet, {iti Floor lSan Francisco, CA 94104
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action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative
(including an action by or in the right of the Claiming Party) to which Claiming Party is, was or at
any time becomes a party, or is threatened to be made a party, pursuant to the services
provided pursuant to this Agreement. The lndemnifying Party shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses incurred by the
Claiming Party in connection with such proceeding upon receipt of an undertaking by or on
behalf of the Claiming Party to repay said amounts if it shall be determined ultimately that
Claiming Party is not entitled to be indemnified under the provisions of this Agreement.
Notwithstanding anything in this Agreement to the contrary, no Claiming Party shall be entitled
to indemnification by the lndemnifying Party if the Claiming Party's conduct giving rise to the
claim for which indemnification is sought constitutes willful misconduct or is a violation of
criminallaw.
10. Confidentiality. Partner understands that it may receive confidential and proprietary
information relating to PresenceLearning's business. Partner agrees that the PresenceLearning
proprietary information is confidential and is the sole, exclusive and extremely valuable
property of Presence Learning.
11, Partner Representations. Partner hereby represents and warrants to PresenceLearning as
follows: (i) Partner has the right, power, and authority to enter into and perform its obligations
under this Agreement, (ii) Partner has obtained all necessary consents in accordance with its
operations to execute and deliver this Agreement and perform its obligations under this
Agreement, (iii) the undersigned has the right, power and authority to enter into this Agreement
on behalf of Partner, (iv) this Agreement constitutes the legal, valid and binding obligation of
Partner, enforceable against Partner in accordance with its terms, subject only to the effect, if
any, of (A)applicable bankruptcy and other similar laws affecting the rights of creditors
generally and (B)rules of law governing specific performance, injunctive relief and other
equitable remedies, and (v) the execution, delivery, performance of and compliance with this
Agreement will not, with or without the passage of time, result in any violation or be in conflict
with or constitute a default under any contract to which Partner is a party or any terms or
provisions thereof.
12. Presencelearping Representations. Presencelearning hereby represents and warrants to
Partner as follows: (i) PresenceLearning has the right power, and authority to enter into and
perform its obligations under this Agreement, (ii) PresenceLearning has obtained all necessary
consents in accordance with its operations to execute and deliver this Agreement and perform
its obligations under this Agreement, (iii) the undersigned has the right, power and authority to
enter into this Agreement on behalf of Presencelearning, (iv) this Agreement constitutes the
legal, valid and binding obligation of PresenceLearning, enforceable against Partner in
accordance with its terms, subject only to the effect, if any, of (A) applicable bankruptcy and
other similar laws affecting the rights of creditors generally and (B) rules of law governing
specific performance, injunctive relief and other equitable remedies, and (v) the execution,
delivery, performance of and compliance with this Agreement will not, with or without the
passage of time, result in any violation or be in conflict with or constitute a default under any
contract to which PresenceLearning is a party or any terms or provisions thereof.
8onnev∥le Jcir)t School District 93 10ノ 1/2013
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580 Market Street′6・ ‐FloorlSan Francisco′CA 94104
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13. Research. Partner hereby grants PresenceLearning permission to use its name for research and
marketing purposes including, but not limited to, press releases, customer lists and referrals. All
materials will be approved by Partner prior to release. Partner also agrees to participate
withPresenceLearning in a case study of student and program outcomes. Partners agree to
collaborate on surveys for research purposes, including but not limited to teacher, SLp, student,
and parent feedback. PresenceLearningagrees to compose and fund a press release focused on
Partner's implementation of Services, which Partner will approve prior to publication.
14. lndependent Contractor. The Parties are independent contractors, and no agency, partnership,
franchise, joint venture, or employment relationship is intended or created by this Agreement.
Neither Party is authorized to make any representation, contract, or commitment on behalf of
the other Party.
15. Arbitration. The Parties agree that any and all disputes, claims, or demands in any way arising
out of or relating to this Agreement shall be resolved, to the fullest extent permitted by law, by
final, binding and confidential arbitration in ldaho.
L5. Assignment. PresenceLearning's rights and obligations under this agreement will bind and
insure to the benefit of its successors and permitted assigns.
L7. Miscellaneous. This Agreement will be governed by the laws of the State of California (without
giving effect to any conflict of laws principles that provide for the application of the law of
another jurisdiction). 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. lf any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will
remain in full force and effect. The headings in this Agreement do not affect its interpretation.
This Agreement may only be amended by the mutual consent of the Parties in writing. This
Agreement constitutes the entire agreement between the Parties regarding the Services, and
supersedes all prior or contemporaneous agreements and understandings between the parties
relating to the Services.
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Bonneville Joint Schoot District 93 TOlt/2C13
415.512.9000 | www.presenceLearnins.com
5fl0 Market Street, 6ti' l,loorlSan Francisco, CA 94L04
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lN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective
Date,
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Exhibit A: Services, Schedule, And Fees
1. Services. PresenceLearning will make available to Partner qualified clinicians and teachers,
including but not limited to speech-language pathologists, counselors, and occupational
therapists (each, a "Clinician") to provide both direct and indirect supplemental educational
services, all of which are to be delivered remotely or via the web, to Partner students with
identified or suspected special needs, including, but not limited to:
a. consultation and collaboration with teachers, parents and Partner; 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 planning meetings, as mutually agreed by partner and
PresenceLea rning.
2. Schedule and Location of Services. Services will be provided exclusively via computer or
telepractice, unless otherwise agreed.
3. Summary of Scope of Work. PresenceLearning understands that the scope of Services to be
provided as follows:
a. Services for 180 students ("Students") during the term of this Agreement.
b. Hourly rate of 575.00 per hour ("Hourly Rate").
c. Annual Maintenance & Support Fee of SSf.SO per student. ("Maintenance & Support
Fee")
4, Fees. ln exchange for the Services, Partner agrees to pay PresenceLearning according to the
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Bonneville Joint School District 93 10/1/2013
415.512 900o l WWW.PresenceLearning.com
schedule:
Monthly
Pavmcnt
$26,325.00 per month for 351 hours of Services. Partner agrees to pay for additionai
hours of Services at a rate of $75.00 per hour.
Minimum
Students
Partner agrees that it v/ill not reduce the total number of Students receiving ServiceJ --
from Presenceleaming by more than 10% over the course of partner's school year,
unless mutually agreed upon in writing. If this written notice is not provided and the
total number of students drops by more than 10%, Partner agrees to make a payment
equal to the sum of the largest three Monthly Payments it has made to Presencelearning
as of that time.
Maintenance
& SupportFee
Partner agrees to pay annual$51.50 per student whO receives ScⅣices for an initial tOtal
ofS9,270。00,
Cancellation
Policy
Partner agrees to pay Presencelearning for Services that are scheduled with
Presenceleam_ing, but not cancelle4with at least 24 hours advance notice.
Equipment
Presenceleaming can provide sets of suitable web cameras and headsets at $95 per set.
Presencelearning can also provide sets of suitable occupational therapy manipulables
and equipment at the request of Bq{ner.
580 Market S'treet, 6th Floor lSan Francisco, CA 94104
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Excerptfrom the Minutes ofthe Board ofttrustees
Regular Meeting
September ll,2013
7:00p.m.
Chairperson Annetle Winchester called the meelng to order at 7:03p.m.
Those Board members in atlendance were Chairperson Annette Winchester,丁 reasurer Amy Landers,Trustee
Brian McBridel and ttrustee」efl Blrd,Vice‐chairperson Kip Neison,was unable to attend.
Chairperson winchesterread the Molon and Orderto Amend the Agenda thatlncluded removing Sarah」ensen
from the Conditional Employment∥st and adding a Trip Requestfrom Bonneville H19h School FHLA Club lo travel
to Parma,ldaho September 28,2013 to allend a state conference.She then asked lfthere would be a motion to
amend the agenda.
M(DTI()N:Amy Landers rnade the molion to amend the Consent Calendar as stated、Jeff Blrd seconded,丁 he vote
was 4 in favor vvith O opposed and O abstenlions.
Chairperson Winchester asked r any BOard Member would“ke to move any nem frOm the consent calendarto the
regular agenda,Hearing none,she then asked ifthere would be a motion to approve the Consent Calendar as
amended.
MOT10NI Bnan McB∥de made the molon to approve the Consent Calendar as amended,Amy Landers
seconded.The vote was 4 in favo「vvith O opposed and O abstentlons.
丁he consent calendarincluded the following under E Proposed Contracts
l.University Of ldaho―Cooperalon in Clinical Expenence
Program
2.MOU Help lnc.
3. PresenceLearning Consultlng Services Agreement
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Valerie Messick
Clerk ofthe Board
Board of Trustees {i Annette Vr'inchester {,
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Kip l{elscn + Anry Landers
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Jeff 8trd
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