2-HCS Vendor Agreement 05.24.docx

STATE OF GEORGIA

HENRY COUNTY Vendor Agreement

This Vendor Agreement ("Agreement") is between the Henry County School District, a political subdivision of the State of Georgia, by and through the Henry County Board of Education, (collectively "HCBOE") and the Company listed below ("Company"). This Agreement is effective as of the date of signing by HCBOE ("Effective Date").

The parties agree as follows:

1.1. Purpose. Company offered to provide the products, services and pricing to HCBOE shown on Exhibit “A” attached hereto.

1.2. Agreement Documents. The following documents are incorporated into this Agreement by reference to fulfill the Purpose described in Exhibit A:

(a) The "Terms and Conditions" attached hereto as Exhibit "B";

(b) The "Data Sharing Agreement" attached hereto as Exhibit "C";

(c) Any Company privacy policy, terms and conditions, terms of use, end user license agreement, or other documents related to the products, services, pricing, Company intends to provide to HCBOE, including representations made as an offeror/bidder pursuant to a HCBOE competitive solicitation (collectively the "Company Documents") are attached hereto as Exhibit "D".

1.3. Inconsistency. Any inconsistency or conflict among the specific provisions of this Agreement, the Terms and Conditions (Exhibit “B”), the Data Sharing Agreement (Exhibit “C”), and the Company Documents (Exhibit “D”) shall be resolved as follows: first, by giving preference to the specific provisions of this Agreement; second, by giving preference to the specific provisions of the Terms and Conditions (Exhibit “B”); third, by giving preference to the specific provisions of the Data Sharing Agreement (Exhibit “C”); and, fourth, by giving preference to the specific provisions of the Company Documents (Exhibit “D”).

1.4. Scope. This Agreement applies to any use of Company's products or services by HCBOE or its employees, agents, teachers, or students. The terms of this Agreement shall govern over any conflicting terms and conditions, purporting to apply to the HCBOE’s use of Company’s products or services including any subsequent purchase order, not signed in writing by an individual authorized to enter into contracts on behalf of HCBOE.

ACCEPTED AND AGREED:

Henry County School District by the Company: _________________________ Henry County Board of Education

Exhibit A: Purpose of Agreement Description of the products, services and pricing to HCBOE

[Insert company quote or order here]

Vendor Agreement with [COMPANY] – Exhibit A: Purpose Revised 03.24 Exhibit B Terms and Conditions Section 1. Scope of Agreement

1.1 Relationship of the parties. This Agreement does not create a partnership, joint venture, franchise, agency, or other such relationship. Neither party has the right, power, or authority to obligate or bind the other party in any manner whatsoever, without the other party's prior written consent.

1.2 No Competitive Advantage. This Agreement is not exclusive and imposes no obligation on HCBOE to acquire or use any Company products or services. Company understands and agrees that nothing in this Agreement will result in favoritism for Company in any bidding arrangements.

1.3 Pricing. The price charged to HCBOE is set forth in Exhibit “A”.

1.4 Term. As required by O.C.G.A. § 20-2-506, this Agreement shall terminate absolutely and without further obligation on the part of HCBOE at the close of the calendar year in which it was executed and at the close of each succeeding calendar year for which it may be renewed, but shall be automatically renewed through the then existing term unless HCBOE terminates the agreement by providing Company with thirty (30) days advance notice of termination prior to the end of the calendar year.

1.4.1 For the avoidance of doubt, the intended, existing term of this Agreement shall be from __________, 20__ through _______, 20____.

1.5 Suspension and Debarment. Company understands that HCBOE shall not award, contract, renew, transact, conduct business or otherwise obtain goods or services from an entity that has been suspended and/or debarred or otherwise disallowed from business by the United States government or the State of Georgia. Upon execution of this agreement, Company expressly represents and warrants that it has not been suspended, debarred, and/or disallowed and that it has not been published as ineligible on the System for Award Management, an administered website of the U.S. General Services Administration (“SAM.gov”). Breach of this express warranty shall be cause for immediate termination of this agreement.

Section 2. General Restrictions

2.1. Neutral. All services provided by Company under this Agreement will be secular, neutral, and non-ideological in content. Where applicable, any related training program shall comport with the requirements of O.C.G.A. § 20-1-11.

2.2. No Research. Company is not authorized under this Agreement to conduct a research study of HCBOE or any of its programs. If Company wishes to conduct a research study, it must comply with the HCBOE protocols, which can be obtained by contacting the Office of Research and Grants.

2.3. No Advertising. Company shall not distribute advertising materials, whether printed or electronic, in HCBOE schools or to HCBOE students. If Company wishes to advertise in HCBOE schools, Company must obtain specific approval of the Superintendent of Henry County Schools.

2.4. No Publicity. Company shall not advertise, publicly announce, or provide to any other person information relating to the existence or details of this Agreement or use HCBOE's name in any format for any promotion, publicity, marketing or advertising purpose without the prior written consent of HCBOE.

2.5. Not to Exceed. If this Agreement contemplates the physical performance of services under O.C.G.A. § 13-10-91 and the total cost of products and services to be provided under this Agreement will exceed $2,499.99, Company MUST SIGN AND RETURN IMMIGRATION/E-VERIFY AFFIDAVITS that will be attached as part of vendor registration with the finance department of HCBOE, including contractor affidavit, subcontractor affidavit, and/or an affidavit of no employees. Proper execution and submission of all immigration/E-Verify documentation is required before payment and before this Agreement shall be deemed complete, per Exh. B, Section 4.10 (integration clause). All parties must comply with HCBOE purchasing requirements.

2.6. No Unilateral Modifications. Company may not unilaterally modify the Company Documents. To the extent any of the Company Documents permit unilateral modifications, such provisions are null and void.

2.7. No New or Conflicting Terms. To the extent parents, students, or teachers must create an account prior to using the services provided by Company, such activation process should not be a means to force parents, students, or teachers to consent to weaker privacy protections in circumvention of the privacy protections included in this Agreement. Company shall ensure that any activation process required of parents, students, or teachers is consistent with the terms of this Agreement and will not override the terms of this Agreement.

2.8. No interest Fees or Collection Costs. Company shall not impose any cancellation fees, late fees or interest fees for payments not made by HCBOE on time. HCBOE will not pay any costs of collections incurred by Company.

2.9. Adherence. Company is responsible for ensuring that its contractors and subcontractors that provide services on Company's behalf under this Agreement comply with the terms of this Agreement.

Section 3. Termination

3.1. Either party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other party. Upon early termination, the Company shall refund to HCBOE a pro-rata portion of the payments previously made by HCBOE to the Company. Pro-rata refund shall be determined by dividing the number of months in the term of the contract into the total numerical amount of the contract. The Company shall refund the monthly amount determined above times the remaining months under the term of the contract which will equal the amount of refund. Said refund shall be paid on the 30th day after receipt of notice of termination.

Section 4. Miscellaneous

4.1. Governing Law and Venue. This Agreement shall be governed in all respects by the laws of the State of Georgia, without regard to its conflict of laws. The exclusive venue for any action arising out of or related to this Agreement shall be in the federal, superior, or state courts of Henry County, Georgia. HCBOE does not agree to any alternative dispute resolution process, to the extent any Company documents provide for an alternative dispute resolution process, including, but not limited to, arbitration and mediation, such provisions are null and void.

4.2. Hold Harmless. Company agrees to indemnify, hold harmless, and defend HCBOE, its current, future, or past officers, agents, and employees from any and against all claims, liabilities, damages, losses, judgments, charges, expenses (including attorney fees) and/or causes of action arising of whatever kind or nature arising out of any conduct or misconduct of Company (and its representatives, agents, contractors and subcontractors) and for which HCBOE, its agents, servants, or employees are alleged to be liable.

4.3. No Prohibitive Agreements. Nothing contained in this Agreement is intended to be a waiver in any respect whatsoever of the HCBOE's right to assert under any circumstances whatsoever its claims of sovereign, governmental, or official immunity from any liability or damages asserted against it by any natural person or entities created by law. To the extent any of the Company Documents purport to require HCBOE to indemnify or hold harmless Company, such provisions are null and void. To the extent any of the Company Documents contains a representation or warranty made by HCBOE, such provisions are null and void.

4.4. No Limitation of Remedies. The parties agree that no remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy conferred by this Agreement or existing at law or in equity or by statute or otherwise.

4.5. Open Records Act. Company acknowledges and agrees that HCBOE is obligated to timely comply with requests for information pursuant to state and federal laws and regulation, including the Georgia Open Records Act ('"GORA"), O.C.G.A. § 50-18-70 et seq. The HCBOE will comply with GORA at its discretion, and is not required to notify Company prior to compliance. Company also agrees to comply with GORA and to make records subject to GORA, as determined by the HCBOE, available for inspection as required by law, unless otherwise exempt under other provisions of the GORA.

4.6. Notices. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be personally delivered, sent by regular mail, overnight delivery service or sent by certified mail, return receipt requested, postage prepaid. Notices will be deemed given (a) on the date delivered if delivered personally, (b) on the first business day following the date of dispatch if delivered by overnight delivery service, or (c) on the earlier of confirmed receipt or the fifth business day following the date of mailing if sent by certified mail. Notices to Company must be sent to the address listed on the first page of this Agreement or such other address that Company specifies in a notice delivered pursuant to this Subsection 4.6. Notice to HCBOE must be sent to each address set forth below or such other addresses that HCBOE specifies in a notice delivered pursuant to this Subsection 4.6.

4.6.1 Superintendent, Henry County Schools, 33 Zack Hinton Parkway, McDonough, Georgia 30253.

4.6.2 William White, Smith, Welch, Webb & White, LLC, 2200 Keys Ferry Court, P.O. Box 10, McDonough, Georgia, 30253.

4.7 Designees and Representatives

Each party will appoint a person to serve as the designated contact representative for the respective organization and who will facilitate and coordinate activities or services as described in Exhibit A. The initial appointee of each organization is:

Vendor Agreement with [COMPANY] – Exhibit B: Terms and Conditions Revised 03.24 For Henry County Schools:

[Name] [Title] [Address] [email] [phone] For [Organization]:

[Name] [Title] [Address] [email] [phone]

From time to time, the parties may modify the above-listed representatives through execution of separate addenda, which, although made subsequent to this Agreement, shall be incorporated fully herein.

4.8 Severability and Waiver. All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative, and may be exercised singularly or concurrently. Failure by HCBOE to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any provision. In the event that any portion of this Agreement shall be held to be unenforceable, the remaining portions of this Agreement shall remain in force an effect.

4.9 Insurance. Upon request by HCBOE, Company will provide proof of insurance to HCBOE in such amounts and on such terms as reasonably required by HCBOE naming HCBOE as an insured under said Policy of Insurance.

4.10 Integration. This Agreement represents the entire and integrated agreement between HCBOE and Company and supersedes all prior negotiations, representations or agreements, either written or oral. HCBOE and Company hereby waive and mutually release each other from any and all prior representations, negotiations or agreements not embodied in this Agreement. This Agreement supersedes any purchase order subsequently sent and may be amended only by written instrument signed by an authorized representative of HCBOE.

4.11 Force Majeure. No party shall be liable for any failure or delay in performing an obligation under this Agreement due to any cause beyond its control, including without limitation, acts of God, riot, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, natural catastrophe, fire, explosion, change in the law, or insolvency. In the event that any event beyond the control of the parties (including without limitation those listed herein) renders any party’s performance impossible or unreasonably impracticable, this Agreement shall become immediately terminable by any party upon written notice to the remaining parties.

Exhibit C Data Sharing Agreement Section 1. Definitions

1.1 "Transferred Data" means any data, information, records, and files that HCBOE (or any HCBOE employee, agent, teacher, or student) provides Company, including education records and personally identifiable student information.

1.2 "Derivative Data" means all modifications, compilations, derivative works and results from processing including analyses, usage statistics and patterns, datasets, databases, reports, recommendations, and visual presentations) created or developed from Transferred Data or on the basis of the use of Company's products or services by HCBOE or its employees, agents, or students.

1.3 "HCBOE Data" means Transferred Data and Derivative Data.

Section 2. Types of Data

2.1. Definitions:

2.1.1 "Common Data Elements" includes student ID, student name, grade level, school ID, school name, teacher name, teacher ID, course ID, section ID, and course name.

2.1.2 "Restricted Data Elements" includes student gender, student race/ethnicity, student birth date, special education status, economic status, student address, student email address, and parent contact information.

2.1.3 "Prohibited Data Elements" includes student social security numbers and student photos.

2.2. HCBOE intends to provide Company only with data elements necessary for the functionality of Company's products and services. HCBOE will provide Restricted Data Elements to Company if, in HCBOE's sole discretion, there is a compelling reason to provide Restricted Data Elements. HCBOE will not share Prohibited Data Elements.

2.3. If Company inadvertently receives or obtains Prohibited Data Elements or Restricted Data Elements that HCBOE did not authorize Company to receive, Company shall notify HCBOE and immediately delete all copies of the Prohibited Data Elements, unauthorized Restricted Data Elements, or both.

Section 3. Compliance with Applicable Privacy Laws

3.1. Company shall comply and shall assist HCBOE in compliance, in all material respects, with federal and state laws and regulations regarding privacy of information and confidentiality of student records, including, without limitation, the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; the federal Protection of Pupil Rights Amendment (PPRA), 20 U.S.C. § 1232h; the federal Children’s Online Privacy Protection Act (COPPA), 16 C.F.R. §312 et. seq.; the federal Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §1415 et seq.; and the Georgia Student Data Privacy, Accessibility, and Transparency Act (SDA), O.C.G.A. § 20-2-660 et seq.

Section 4. Transmission of Data

4.1. Company may send and receive HCBOE Data by a secure file transfer protocol (SFTP) connection or a secure internet site transfer using an HTTPS web address. HCBOE will not provide data to Company through spreadsheets sent by email.

Section 5. Use of Data

5.1. Company may collect HCBOE Data only for the use and benefit of HCBOE and its students. Company may use HCBOE Data only to provide services to HCBOE. Company shall not sell HCBOE Data or use HCBOE Data for any commercial or marketing purposes.

5.2. Company shall comply with the SDA to the extent Company is an "operator" as defined by the SDA. Specifically, Company shall not: (I) use student data to engage in behaviorally targeted advertising based on any student data and state-assigned student identifiers or other persistent unique identifiers that Company has acquired because of a student's use of Company's website, service, or application; (2) use information created or gathered by Company's website, service, or application to amass a profile about a student except in furtherance of K-12 school purposes; (3) sell a student's data except as authorized by O.C.G.A. § 20-2-666; or, (4) disclose student’s personally identifiable data without explicit written or electronic consent from the student over the age of 13 or a student's parent or guardian, given in response to clear and conspicuous notice of the activity, unless disclosure is made for a purpose authorized under O.C.G.A. § 20‑2-666.

5.3. To the extent Company must analyze HCBOE Data to provide services to HCBOE, all results of such data analysis will be reported in aggregate and no individual student will ever be identified or identifiable in formal reporting or publications.

5.4. To the extent Company has a legitimate educational interest in student educational records and information and must access such records and information in order to provide services to HCBOE and its employees, agents, teachers, and students, HCBOE designates Company a "school official" within the meaning of FERPA. Company will be under the direct control of HCBOE with respect to the use and maintenance of personally identifiable information and education records, as those terms are defined by FERPA, and Company may use personally identifiable information and education records only for the purpose of performing its obligations under the Agreement.

5.5. Within thirty days of a request by HCBOE, Company shall provide HCBOE an analysis of HCBOE's use of Company's products and services. Such analysis shall include, at a minimum, the number of unique users, number of users per months, and modules used.

Section 6. Ownership of Data

6.1. HCBOE retains all ownership rights in HCBOE Data. Notwithstanding any other term of this Data Sharing Agreement, Company will not disclose HCBOE Data to any third party except as permitted by HCBOE and 34 C.F.R. § 99.33(a).

6.2. Upon request by HCBOE, Company shall give HCBOE access to HCBOE Data maintained by Company within ten business days of such request and at no charge to HCBOE.

6.3. Unless otherwise agreed to by HCBOE in writing, within ten business days of termination of the Agreement, for any reason, Company shall return all HCBOE Data to HCBOE.

6.4. With respect to information protected by FERPA, Company may not continue to maintain education records or personally identifiable student information after termination of the Agreement or after it ceases to provide services to HCBOE. Unless otherwise directed by HCBOE, Company shall destroy all education records and personally identifiable student information within 45 days of termination of the Agreement as required by the SDA. Company shall destroy this information in accordance with acceptable industry standards for secure and comprehensive destruction of sensitive data. No later than 50 days after termination of the Agreement, Company shall provide HCBOE written confirmation that all education records and personally identifiable student information has been securely destroyed.

Section 7. Audit Right

7.1. HCBOE may audit the records and systems of Company to ensure compliance with the terms of this Data Sharing Agreement. HCBOE will notify Company in writing at least ten business days prior to any such audit. Any such audit will be conducted during Company's regular business hours at Company's location and will not interfere unreasonably with Company's business activities. If an audit reveals that Company is using HCBOE Data beyond the scope of the Agreement, then, in addition to any other remedies available to HCBOE, Company shall reimburse HCBOE for the cost of such audit.

Section 8. Data Security

8.1. Privacy, Confidentiality, and Security. Company understands and agrees that it is imperative to protect HCBOE Data in order to protect public resources and to prevent identity theft or other malicious and damaging acts. Company shall comply with all applicable federal, state, and local laws, rules, and regulations, as the same may be amended or supplemented from time to time, including, but not limited to, the SDA and other laws pertaining in any way to the privacy, confidentiality, security, management, and disclosure of HCBOE Data and information. Company shall also adhere to all applicable industry standards concerning privacy, data protection, confidentiality and information security as well as all HCBOE policies, procedures, and operating guidelines regarding privacy, confidentiality, and security. In accordance with the SDA, Company shall implement and maintain reasonable security procedures and practices appropriate to the nature of the student data to protect that information from unauthorized access, destruction, use, modification, or disclosure.

8.2. Education Records. Company represents and warrants that it will adhere to applicable privacy standards as required with respect to education records and personally identifiable information as required by FERPA and its implementing regulations, as well as the requirements under the SDA, the PPRA and its implementing regulations. Company represents and warrants that it will comply with COPPA and its implementing regulations.

8.3. Protection of Data. Company shall take all commercially reasonable measures necessary to keep the HCBOE Data confidential, including, without limitation, all measures it takes to protect its confidential information of a similar nature. Without limiting the effect of the preceding sentence, Company will take commercially reasonable actions, legal or otherwise, necessary to cause its representatives to comply with the provisions of this Agreement and to prevent any disclosure of HCBOE Data by any of them.

8.4. Foreign Transmission and Storage. Company shall not transmit, transport, or store HCBOE Data outside the United States except on prior written authorization by HCBOE.

Section 9. Breach of Data Sharing Agreement

9.1. Notice of Data Breach. Company shall give prompt written notice to HCBOE of any suspected or actual security breach that may or does impact HCBOE Data or of any unauthorized use or disclosure of HCBOE Data, Company shall assist HCBOE in remedying each unauthorized use or disclosure at Company's expense. Giving assistance does not waive any breach of this Data Sharing Agreement by Company, nor does acceptance of the assistance constitute a waiver of any breach of this Data Sharing Agreement.

9.2. Breach of Data Sharing Agreement. Company acknowledges and agrees that any breach of HCBOE Data by Company, or any of its respective agents, representatives, administrators, employees, officers, directors, attorneys, successors and assigns causes HCBOE irreparable damage. Therefore, in the event of any breach or threatened breach of this Data Sharing Agreement by Company or any of its representatives, HCBOE is entitled to equitable relief, including injunctive relief and specific performance, without proof of actual damages and without the posting of a bond.

Vendor Agreement with [COMPANY] – Exhibit C: Data Sharing Agreement Revised 03.24 Exhibit D Company Documents The following documents listed below are attached to this agreement as Company Documents:

1. _______________________________________________________________________________

2. _______________________________________________________________________________

3. _______________________________________________________________________________

4. _______________________________________________________________________________

5. _______________________________________________________________________________

Vendor Agreement with [COMPANY] – Exhibit D: Company Documents Revised 03.24