WHEREAS, Company has the capability and capacity to offer the System for participating schools;
WHEREAS, Customer desires to retain Company to provide said System, and Company is willing to provide the System under the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. System Access; Grant of License.
Subject to the terms of this Agreement, Company shall grant to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to access and use the online management system more particularly described in Exhibit A (the “System”), solely for Customer’s internal purposes. By Customer’s access to and use of the System, Customer shall effectively become a “member” of Company’s online screening application program within the System. Customer may permit its authorized users to access the System, provided such access is in accordance with this Agreement. Customer shall remain responsible for the acts and omissions of its authorized users.
2. Company Obligations.
Company shall maintain complete and accurate records relating to the System and Customer’s membership therewith under this Agreement.
3. Customer Obligations.
Customer shall:
(a) provide and maintain the necessary computer hardware and network connectivity needed to access the System’s components online pursuant to the specifications described in Exhibit A;
(b) assign one individual as Customer’s “Technology Representative” who will be responsible for preparing and uploading student, staff, course, and enrollment files;
(c) cooperate with Company in its provision of the System;
(d) comply with all policies of Company and specifications related to the System and its use; and
(e) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Company’s provision of the System.
4. System Use Restrictions.
Customer shall not, and shall ensure that its authorized users do not:
(a) copy, download (except as expressly permitted), reproduce, or create derivative works from the System;
(b) reverse engineer, decompile, disassemble, or attempt to extract source code from any portion of the System;
(c) resell, rent, lease, sublicense, or otherwise distribute access to the System to third parties;
(d) use the System in connection with any unlawful or infringing 2 activities; or
(e) use automated tools (including bots, crawlers, or scrapers) to access or interact with the System.
5. Fees and Expenses.
(a) In consideration of the provision of the System by Company and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in Exhibit B. Payment to Company of such fees pursuant to this Section 5 shall constitute payment in full for the provision of the System. Unless otherwise provided in Exhibit B, said fee will be payable within thirty (30) days of receipt by Customer of an invoice from Company.
(b) Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; and to the extent Company is required to pay any such sales, use, excise, or other taxes or other duties or charges, Customer shall reimburse Company in connection with its payment of fees and expenses as set forth in this Section 5. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Company’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
(c) Except for invoiced payments that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of five percent (5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to: (i) suspend Customer’s access to the System if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof; (ii) qualify such an event as a default under this Agreement; and/or (iii) terminate this Agreement in the event of nonpayment.
6. Limited Warranties and Limitation of Liability.
(a) Company warrants that it: (i) owns the System and its incorporated Intellectual Property Rights; (ii) has good and marketable title to the System, and the System is free and clear from any claims of infringement of Intellectual Property Rights of third parties; and (iii) shall provide the System in accordance with the terms and subject to the conditions set out in the respective exhibits and this Agreement.
(b) Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranties expressly provided in Section 6(a) shall be as follows: (i) Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Company cannot cure such breach within a reasonable time (but no more than thirty (30) days after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 11(c); and (ii) in the event the Agreement is terminated pursuant to Section 6(b)(i) above, Company shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer as of the date of termination for the System or Deliverables, less a deduction equal to the fees for receipt or use of such System up to and including the date of termination on a pro-rated basis.
(c) Customer acknowledges and agrees that the System is provided “as is”, and that Company makes no representations or warranties, express or implied, that the System will meet the current or future requirements of Customer, its authorized users, or any other member. Customer further understands that Company does not warrant that the System will be error-free or free from bugs or defects.
(d) COMPANY MAKES NO WARRANTIES EXCEPT FOR THOSE PROVIDED IN SECTION 6(a), ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
7. Intellectual Property.
(a) All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, domain names, content, materials, features, and functionality therein (including the text, data compilations, software, and design) together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) under this Agreement associated with the System, or prepared by or on behalf of Company in the course of providing the System, including any items identified as such in the exhibits to this Agreement (collectively, the “Deliverables”), except for any Confidential Information of Customer or Customer Data, shall be owned by, and remain the exclusive property of, Company. Company hereby grants Customer a license to use all Intellectual Property Rights in the System and/or Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the System and the Deliverables. All rights not expressly granted under this Agreement by Company are reserved.
(b) Customer retains all rights, title, and interest in and to any data or content it submits to Company through the System (“Customer Data”). Customer grants Company a non- exclusive, worldwide, fully paid-up, royalty-free, and perpetual license to use, process, and store Customer Data as necessary to provide the System under this Agreement.
(c) Company may compile and use aggregated or anonymized data and/or pupil screener data derived from Customer’s use of the System for analytics, research, benchmarking, and/or service improvement, provided such data does not identify Customer, its users, its students, individual district data, or school building information.
8. Confidentiality.
(a) From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential”, or if disclosed orally, is identified as confidential when disclosed, and within thirty (30) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that was not legally or contractually restricted from disclosing such information; (iii) the Receiving Party establishes by documentary evidence was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) the Receiving Party establishes by documentary evidence was or is independently developed by Receiving Party without using any of the Disclosing Party’s Confidential Information.
(b) The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
(c) If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order, or other remedy. For purposes of this Section 8 only, “Receiving Party’s Group” shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, permitted sublicensees, subcontractors, attorneys, accountants, and financial advisors.
9. Data Privacy and Security
(a) Each Party shall comply with applicable data protection and privacy laws in relation to its performance under this Agreement, including the Family Educational Rights and Privacy Act of 1974 (“FERPA”) and the Children’s Online Privacy Protection Act (“COPPA”). Company shall implement and maintain industry-standard technical and organizational measures to safeguard the System and any Customer Data against unauthorized access, loss, or destruction. In the event of a data breach involving Customer Data, Company will notify Customer without undue delay after becoming aware of the breach, and will provide reasonable cooperation in mitigating its effects.
(b) Pursuant to FERPA, Company is: (i) acting as a school official with a legitimate educational interest; (ii) performing an institutional service or function for which the school would otherwise use employees; (iii) under the direct control of the school with respect to the use and maintenance of covered information (though control is limited as specified in this Section 9(b)(iii) and the relationship of the Parties remains that of independent contractors for purposes of this Agreement); and (iv) using the covered information only for an authorized purpose under FERPA. Company acknowledges it may not re-disclose covered information under FERPA to third parties or affiliates, unless otherwise permitted under FERPA, without permission from Customer or pursuant to court order.
(c) During the Term of this Agreement, the Parties agree to comply with Ohio’s Senate Bill 29, also referred to as the “Student Data Privacy Act,” if Customer is an Ohio-based entity. Each Party agrees to ensure the appropriate security safeguards are in place to protect educational records. Such protections include a restriction on unauthorized access by Company’s employees or contractors, whereas such employees and/or contractors are only authorized to access educational records through the System as necessary to fulfill their official duties and the terms of this Agreement. All other access to educational records will be strictly prohibited. The audit and monitoring rights of Company expressed in Section 10, and Customer’s right to monitor and access Customer Data through the System, are permitted rights under the Student Data Privacy Act due to the fact the System is limited to a noncommercial, educational purpose for instruction, technical support, and/or exam proctoring by the relevant school district’s employees, student teachers, and staff contracted by a district and Company. Beginning August 1, 2025, and no later than the first day of August of each relevant school year during the Term, Customer shall provide parents and students direct and timely notice, by mail, electronic mail, or other direct form of communication, of the System and its effect on or access to a student’s educational records. Such notice shall: (i) identify the System and Company as the provider of the System; (ii) describe the educational records affected or accessed by the System; (iii) include information about Company’s and Customer’s audit, inspection, and monitoring rights; (iv) provide Customer contact information to which a parent or student may direct questions or concerns regarding the System to Customer; and (v) inform parents and students of their rights to inspect this Agreement. Each Party agrees to reasonably cooperate with the other Party so each Party may fulfill its obligations under this Agreement and the Student Data Privacy Act. In the event that educational records maintained by the System are subject to a breach of the security of the data as described in the Student Data Privacy Act, Company shall disclose to Customer all information necessary to properly inform Customer of the incident pursuant to the terms of the Student Data Privacy Act. Moreover, within seventy-two (72) hours of the incident, Customer will notify parents and students of the situation, describing which features of the System were accessed and the threat of the breach, if any.
(d) During the Term of this Agreement, the Parties agree to comply with Illinois’ Student Online Personal Protection Act (“SOPPA”) if Customer is an Illinois-based entity. Pursuant to SOPPA, Company shall: (i) implement and maintain reasonable security procedures and practices that meet (or exceed) industry standards designed to protect student information from unauthorized access, destruction, use, modification, or disclosure; (ii) delete, within a reasonable time period, a student’s protected information under SOPPA, if requested by Customer (and not otherwise requested to maintain by a student’s parent); (iii) publicly disclose information about its collection, use, and disclosure of students’ protected information under SOPPA through its privacy policy; (iv) delete or transfer to Customer all students’ protected information under SOPPA if such information is no longer needed for the purposes of this Agreement within one (1) year of such determination; (v) notify Customer of any breach of students’ protected information under SOPPA within the most expedient time possible and without unreasonable delay, but no later than thirty (30) days after the determination that a breach has occurred; (vi) provide Customer a list of any third parties or affiliates to whom Company is currently, or will be, disclosing students’ protected information to for purposes of fulfilling its obligations under this Agreement (which list shall be updated at least biannually by the beginning of each Illinois fiscal year and at the beginning of each calendar year); (vii) be prohibited from selling or renting students’ protected information or using such information to engage in targeted advertising; and (viii) otherwise only use such protected student information for purposes permitted by SOPPA.
Customer shall publish this Agreement on its school website in order to comply with SOPPA. In the event of a data breach that impacts students’ protected information under SOPPA, Company will provide a description to Customer regarding how such breach is attributed to Company and how any costs and expenses incurred in investigating or remediating the breach will be allocated between Customer and Company. Such costs and expenses may include, but are not limited to: providing notification of the breach to parents and students whose covered information was compromised, or to regulatory agencies or entities required by law or contract to be notified of such breach; providing credit monitoring to students whose covered information was exposed; covering legal fees, audit costs, fines, and any other fees or damages imposed against Customer as a result of the breach; and/or providing any other notification requirements adopted by the state of Illinois.
In the event of a data breach under SOPPA, Customer shall be required to notify the parents and students whose covered information was accessed in such breach no later than thirty (30) days after receipt of the notice or determination that a breach has occurred from Company.