Agenda Item
c. Purchase of Edmentum’s Apex Learning Courses and Tutorials (in an amount not to exceed $557,270.26)
Summary: Ms. Stacy Stepney, Chief Academic Officer, Division of Curriculum and Instruction
Request: It is requested that the Board of Education approve the purchase of a district-wide license for Edmentum’s Apex learning courses and tutorials from Edmentum at a cost not to exceed $557,270.26.
Why: Virtual learning provides a platform that allows students equitable access to content, improving learning outcomes for all students. With access to courses at any time, any place, students have flexibility with pacing.
Details: To augment FLEX Academy's robust course offerings, DeKalb County School District added Edmentum’s Apex learning courses during the 2021-22 school year. This content can be aligned to the district-adopted curriculum guides and supports synchronous and asynchronous instruction.
Edmentum, which purchased Apex, provides content efficacy which addresses diverse student needs, promotes on-time graduation, and prepares each student for college and work. Edmentum, through their Apex learning courses, provides digital content that can be used to enhance online instruction for students and teachers. This content:
Creates equitable opportunities for students to access quality digital content.
Supports the school district's Board-approved curriculum.
Provides the ability to personalize learning for accelerated as well as struggling students.
Provides a complete course of study that offers active learning, standards coverage, and depth of instruction.
Provides progress monitoring.
Provides integrated formative and summative assessments.
Pursuant to Board Policy DJE, Edmentum’s Apex learning courses were evaluated and selected by qualified professional personnel based on sound pedagogical judgment and the school district's best interest.
Financial impact: The financial impact is $557,270.26 to purchase a district-wide license.
General Funds:
100.1000.561200.23711.6020.1041.6013.090.0000
Contact: Ms. Stacy Stepney, Chief Academic Officer, Division of Curriculum and Instruction, 678.676.0731
Effective: July 1, 2023 - June 30, 2024
Status: Approved by General Counsel
Date: 02/17/2023
Order Number: Q-484510
Revision: 1
Order Form Expiration Date: 06/30/2023
ORDER FORM Please fax all pages to 1.877.519.9555 or email to orders@edmentum.com
Orders Under $25,000.00 may pay by Credit Card:
Call 214.294.9901 or e-mail creditcardprocessing@edmentum.com
Customer and Billing Address
Customer No.: 117260
Customer Name: Dekalb Co School District
Billing Address: 1701 Mountain Industrial Blvd
Stone Mtn, GA 30083-1027
Products and Services
DeKalb County Apex Courses & Tutorials
Products Qty License License License
Start Date End Date Term
(Months)
Apex Learning Courses: Unlimited enrollments for all students district wide 1 07/01/2023 06/30/2024 12
Apex Learning Tutorials: Unlimited enrollments for all students district wide 1 07/01/2023 06/30/2024 12
DeKalb County Schools
Products Qty License License License
Start Date End Date Term
(Months)
Customer Success Services 1 07/01/2023 06/30/2024 12
Courseware: Core Library - Program License 1 07/01/2023 06/30/2024 12
Courseware 24/7 Tutoring - Up to 10 hours 3000 07/01/2023 06/30/2024 12
Subtotal: $557,270.26
Estimated Tax: $0.00
Total US Funds: $557,270.26
** Unless otherwise specified in this Order Form, the Start Date for your license(s) will be one of the following: (a) the day immediately following the
expiration date of the prior license term or (b) the date in which we have accepted your order and have issued log-in credentials for your software
license.
*** Services purchased are valid for an annual term. Any service offering that is not used during the applicable term will expire and cannot be carried
over or used in subsequent periods.
Invoicing and Payment Terms
Edmentum | P.O. Box 776725 | Chicago, IL 60677-6725 | www.edmentum.com
Page 1
Date: 02/17/2023
Order Number: Q-484510
Revision: 1
Order Form Expiration Date: 06/30/2023
ORDER FORM Please fax all pages to 1.877.519.9555 or email to orders@edmentum.com
Orders Under $25,000.00 may pay by Credit Card:
Call 214.294.9901 or e-mail creditcardprocessing@edmentum.com
Payment Due Date Amount
7/16/2023 USD 557,270.26
Total USD 557,270.26
Terms and Conditions
For the purposes of this Order Form, "DCSD" refers to Customer, and "Edmentum" refers to edmentum Inc. and affiliates. DCSD and
Edmentum may be referenced individually as "Party" or collectively as "Parties." This Order Form and any documents it incorporates
(including DCSD Custom Purchase and License Terms ('Custom Terms') and the documents it references) form the entire agreement
between the Parties ("Agreement"). To the extent of any conflict or inconsistency between the provisions in the Custom Terms and this
Order Form, the terms of this Order Form will prevail.
Purchase Order
You acknowledge that this Agreement is non-cancellable and you will submit a purchase order for the full amount of this Order Form. Your order will not
be scheduled for delivery until you have submitted a purchase order referencing and conforming to this Order Form.
Acceptance
This offer will expire on the Order Form Expiration Date noted above unless we earlier withdraw or extend the offer in writing.
I represent that I have read the terms and conditions included in this Agreement, that I am authorized to accept this offer and the Agreement's terms and
conditions on behalf of the customer identified above and that I do accept this offer on behalf of the customer who agrees to adhere to the Agreement's
terms and conditions. To the extent that either parties process does not require that I execute this Order Form, I accept, acknowledge and agree to the
terms and conditions identified in and referenced in this Agreement as signified by my receipt, use or access of the products and/or services identified.
Please fax all pages to 1.877.519.9555 or email to orders@edmentum.com.
\attachment1 {"label":"Purchase Order"}\
Customer Signature \signature1{“size”:”small”}\
Name (Printed or Typed) \fullname1{“size”:”small”}\
Title \title1{“size”:”small”}\
Date \date1{“size”:”small”}\
Edmentum | P.O. Box 776725 | Chicago, IL 60677-6725 | www.edmentum.com
Page 2
DCSD CUSTOM SERVICE PURCHASE AND SOFTWARE LICENSE TERMS
The Terms and Conditions contained in this document (the “Custom Terms”) apply to any transaction whereby Edmentum (sometimes referred to in this
document as “Edumentum” “we” “us” or “our”) provide to DeKalb County School District (referred to as “DCSD” “customer” “you” or “your” as identified in more
detail on the applicable Order Form (“Order Form”)) (1) license rights to use our Software for a fixed term, (2) Materials for use with the Software, or (3)
Professional Services. These Custom Terms are an integral part of an agreement (the “Agreement”) that consists of (in order of precedence) an Order Form,
these Custom Terms, and any documents incorporated by reference into either the Order Form or Custom Terms (including those incorporated by hyperlink
reference). You acknowledge that the Order Form and the Custom Terms constitute the entire agreement between the parties and will supersede and replace
any provisions in your purchase order or other contracting or purchasing documents that do not exactly mirror these terms. The Agreement will be effective as
of the Order Date specified on the Order Form and will be binding when the Order Form has been executed by you. We reserve the right to require your
submission of one or more purchase orders in accordance with the terms outlined in your Order Form. Capitalized terms used throughout the Agreement are
defined in the Order Form, in section 5.0 (below), and elsewhere in these Custom Terms. These Custom Terms may only be superseded or amended by other
terms and conditions you and we have specifically documented in a signed Order Form.
1.0 SOFTWARE: The following terms and conditions will apply to your transaction with us as described in more detail on the Order Form:
1.1 General License Terms. All Software license rights that we grant you are specifically subject to the following general terms and
conditions:
1.1.1 All licenses are non-exclusive, non-transferable and non-assignable.
1.1.2 We either own or have licensed from third parties all rights necessary to grant the licenses being granted you in the Software. We or
our licensors own and retain all rights, title and interest in and to the Software and all ideas, concepts, methodologies, formats,
specifications, and other know- how furnished by us or our licensors in connection with this Agreement, as well as all related
intellectual property rights.
1.1.3 All access and use of Software under this Agreement will be subject to our Privacy Policy, which can be found at
http://www.edmentum.com/Privacy which is expressly made a part of this Agreement.
1.1.4 Licenses granted under this Agreement will be automatically revoked if this Agreement is terminated and automatically terminate on
the license expiration date as identified on the Order Form. Edmentum reserves the right to suspend or revoke any license granted
under this Agreement if DCSD breaches this Agreement. If the license granted under this Agreement is revoked, Edmentum shall
refund a pro-rated share of fees paid by DCSD for remainder of the license term to DCSD within thirty (30) days of the date license
is revoked.
1.1.5 We reserve the right to terminate access to any Software to the extent we end of life or similar the Software. If we exercise this right
we will transition you to an appropriate alternative Software product that we own or license.
1.2 Restrictions. You and your Users will use the Software solely for the purposes stated in the applicable license grants and will not: (i) modify,
copy or create derivative works based on the Software; (ii) frame or mirror any content forming part of the Software, other than for your
own internal educational or training purposes during the license term and not in violation of any use or User restrictions; ( iii) reverse
engineer, decompile or disassemble the Software; (iv) access or allow others to access the Software in order to build, market or offer a
competitive product or service, or copy any ideas, features, functions, answers, questions, contents or graphics of the Software; (v) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available
to any third party, other than to Users as contemplated by this Agreement; (vi) send spam or otherwise unsolicited messages i n violation
of applicable laws; (vii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material
that is harmful to children or violates third party privacy rights; (viii) intentionally send or store any viruses, worms, ti me bombs, Trojan
horses or other harmful or malicious code, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of the
Software or the data contained therein; (x) attempt to gain unauthorized access to the Software or its related systems or networks; or (xi)
publicly display or publicly perform the Software without our prior written permission.
1.3 Software Operability:
1.3.1 Maintenance and Access. During the Subscription Period, we will use commercially reasonable efforts to make the Software
available (subject to routine maintenance windows and unavailability not caused by us) to you and your Users via the Internet 24
hours a day, 7 days a week. All access rights for you and your Users will be via the worldwide web using a browser and Internet
connection compliant with the System Requirements (described in section 1.4).
1.3.2 Outage Periods. The term “Outage Period” means a period of more than 48 consecutive hours in which your Users are prevented
from accessing the Software due to factors completely within our control during a period that you are not in breach of this Agreement.
Outage Periods exclude (a) planned downtime and (b)any Force Majeure event. If you experience an Outage Period, then upon your
written request we will issue you a credit for the pro-rated share of fees you have paid for usage during the month during which the
Outage Period occurs. Your request for this credit must be made within 30 days after the end of the Outage Period. Your sole and
exclusive remedy for an Outage Period will be the above credit.
1.4 System Requirements. Our System Requirements document (found at http://www.edmentum.com/support) (‘System Requirements”)
details the necessary hardware, software, system configuration, network infrastructure, bandwidth and other operational requirements
necessary for you to successfully operate and use the Software. The System Requirements are subject to periodic change. You
acknowledge that you are responsible for the cost, operation and availability of, and you and your Users compliance with, all elements of
the System Requirements.
1.5 Responsibility for User Activity. You are responsible for all activities that occur in User accounts and for compliance by your Users with
these Custom Terms. You will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all
Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, disclosure of or use of the Software, and notify
us promptly of any such unauthorized access or use; and (iii) in connection with this Agreement, comply (and ensure compliance by your
Users) with all applicable local, state and federal laws, rules and regulations.
Edmentum DCSD Custom Service Purchase and Software License Terms Dekalb CSD rev 2022.05.31 // Page 1 of 5
1.6 Intellectual Property
1.6.1 Reservation of Rights. The Software we are providing is licensed to you, not sold. Subject to the limited rights expressly granted
to you and your Users herein, we reserve all rights, title and interest in and to the Software and any Materials we provide, including
all related intellectual property rights (except for those owned by our third-party vendors and licensors, which are reserved to them).
No other rights are granted to you or your Users.
1.6.2 Rights to Customer Data. As between you and us, you own all rights, title and interest in and to all Customer Data. You hereby
grant us a non-exclusive, royalty free license to perpetually use, modify, distribute and work with the Customer Data to the extent
that we do so in compliance with applicable law, including but not limited to the Family Educational Rights and Privacy Act (FERPA),
20 USC 1232g, Protection of Pupil Rights Amendment (PPRA), 20 USC 1232h, Children’s Online Privacy and Protection Act
(COPPA) 15 USC 6501 et seq., Georgia Student Data Privacy, Accessibility and Transparency Act, O.C.G.A. 20 -2-660 et seq,
and Edmentum’s Online Learning Programs Privacy Policy.
1.6.3 Suggestions. We will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or
incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by you or
your Users relating to the Software.
1.6.4 Custom Learning Paths
a. Rights to Custom Learning Paths. Certain Software allows you to customize the instructional content of the Software to suit
your instructional needs. “Your Learning Paths” refers to the custom learning paths you create using this feature of the
Software. We make no warranties or commitments related to your ability to access or use Your Learning Paths during the term
of your licenses or at the expiration or termination of your licenses.
b. Our Use of Your Learning Paths. We may use or modify Your Learning Paths and may provide them to our other customers.
c. Customer Created, Modified or Stored Content. Certain Software enables you to create, customize or store content,
documentation or otherwise. If you do, you accept, agree and acknowledge that (i) we can use and disseminate such items, (ii)
at the expiration or termination of your licenses, we will not be returning these items to you and you have no rights in such items
and (iii) you are responsible for ensuring that all laws, regulations and judicial precedence is followed in such creation,
customization, disclosure or storage, including but not limited to intellectual property laws.
1.7 Limited Warranty for Software. Subject to the terms of Section 4.6, we warrant that the Software will perform in substantial accordance
with the applicable Documentation during the Subscription Period. This warranty is contingent on your use of the Software in accordance
with this Agreement and the applicable Documentation. If we breach this express warranty, and you promptly inform us of such in writing,
we will at our option and expense: (a) modify the affected Software to generally conform with the applicable Documentation, or (b) provide
a replacement for the affected Software which generally conforms with that Documentation, or (c) refund you the portion of your license
price related to the applicable Software that is attributable to the remaining Subscription Period. This will be our sole obligation, and your
sole remedy, with respect to any breach of this warranty. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN THIS SECTION,
THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY ADDITIONAL WARRANTIES OF ANY
KIND. WE DO NOT WARRANT THAT THE SOFTWARE WILL PERFORM UNINTERRUPTED OR BE ERROR-FREE OR THAT THE
SOFTWARE WILL MEET YOUR PARTICULAR REQUIREMENTS.
2.0 THIRD PARTY SOFTWARE AND SERVICES. The following terms and conditions will apply to all Third-Party Software and Third Party
Services.
2.1 Subject to Third Party’s Warranties and Terms. Third Party Software and Third Party Services are distributed by us as a licensor,
distributor or reseller. These products and services are provided subject to the separate license and sale terms, conditions and restrictions
required by the third party. WE DO NOT PROVIDE, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ON
ANY THIRD-PARTY SOFTWARE AND SERVICES WE SUPPLY OR MAKE AVAILABLE TO YOU. IN ADDITION, WE DO NOT
GUARANTEE THE AVAILABILITY OF SUCH THIRD-PARTY SOFTWARE OR SERVICES AND SUCH SOFTWARE OR SERVICES MAY
BE MODIFIED OR REMOVED AT ANY TIME.
2.2 Warranty Claims. We will use reasonable commercial endeavors to facilitate warranty claims you may make against the third party
supplying such products or services. This is our sole obligation relative to these products or services.
3.0 PROFESSIONAL SERVICES. Professional Services listed on the Order Form will be provided subject to the following terms and conditions:
3.1 Mutual Cooperation. You and we mutually agree to cooperate with each other in a professional and courteous manner in the performance
of our respective duties in the delivery of Professional Services.
3.2 Scheduling Changes Caused by DCSD. DCSD agrees to notify Edmentum at least five (5) business days in advance of DCSD’s intention
to reschedule previously confirmed on-site Professional Services sessions
3.3 Scheduling Changes Caused by Us. If we are required to reschedule (except for reasons caused in whole or in part by you or that are
outside our reasonable control) a previously confirmed on-site Professional Services delivery session, we will use all reasonable efforts to
provide you at least 5 business days’ notice. If we do not provide such notice, and you incur reasonable direct, non -refundable expenses
which you have made good faith efforts to avoid, we will upon your written request (which must include documentation of these expenses)
provide you a credit for such expenses. In no case, however, will the amount of credit exceed $750.
3.4 Acceptance of Services and Warranty.
3.4.1 Warranty and Acceptance. We warrant that the Professional Services we provide will be performed in a workmanlike manner. If you
reasonably determine that the Professional Services have not met this standard, you must provide us written notice specifying any
deficiencies in detail within 10 business days after the service delivery. We will then use reasonable commercial efforts to cure any such
deficiencies promptly which may include our providing additional Professional Services at our expense. If you do not provide notice of
any deficiencies to us within the 10-day period, your acceptance of the Professional Services will be considered final.
Edmentum DCSD Custom Service Purchase and Software License Terms Dekalb CSD rev 2022.05.31 // Page 2 of 5
3.4.2 Failure to Cure. If you give us notice under subsection 3.4.1 and we are unable to cure the deficiency within 60 days after your
notice, you may terminate the directly affected portions of service and obtain a refund of amounts you have paid for the terminated
Professional Services.
3.4.3 Sole remedies. The remedies specified in this section 3.4 are your only Professional Services related remedies.
3.5 Compliance with Workplace Rules. We will have the person or persons we assign to perform the Professional Services comply with
those of your lawful workplace rules you have provided to us and them in writing in advance.
3.6 Subcontractors. We may, in our reasonable discretion, use third parties, including, but not limited to agents, to perform any of our
obligations regarding delivery of the Professional Services.
4.0 GENERAL TERMS
4.1 Fees and Payment
4.1.1 Fees. DCSD agrees to timely pay all amounts due to Edmentum as shown on the Order Form and acknowledge that by submitting a
signed Order Form, DCSD is representing to Edmentum that the employee or agent signing on your behalf has the requisite authority to
bind DCSD to the terms and conditions of the Agreement, including the payment obligations identified on the Order Form. Except if
specified in the Order Form or in section 1.3.2 (re Outages) all such amounts are non- cancellable and non-refundable.
4.1.2 Taxes. Except to the extent you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority
covering all applicable taxes otherwise due and payable, we will invoice you for and you will pay any applicable direct or in direct
local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to,
value-added, gross receipts, sales, use or withholding taxes associated with your license or purchases under this Agreement, except
for taxes based on our net income or real property.
4.1.3 Acceptance. All Software will be deemed accepted upon our making it available to you online and will thereafter be subject to the
limited warranty provision of this Agreement.
4.2 Confidentiality
4.2.1 Definition of Confidential Information. "Confidential Information" means all confidential and proprietary information disclosed by
one party (the “Discloser”) to the other (the “Receiver”) and that is either designated as confidential or of a type that should be
reasonably expected to be confidential. Confidential Information includes the Customer Data, our Software, business and marketing
plans, technology and technical information, product designs, and business processes, but does not include any information that,
without breach of obligation owed to Discloser: (a) is or becomes generally known to the public; (b) was known to the Receiver prior to
its disclosure by the Discloser; (c) was independently developed by the Receiver; or (d) is received from a third party.
4.2.2 Protection. The Receiver will not disclose or use any Confidential Information of the Discloser for any purpose outside the scope
of this Agreement, except with the Discloser's prior written permission. The Receiver will protect the Confidential Information of the
Discloser as if it were the Receiver’s own Confidential Information, and at a minimum, with reasonable care. This obligation will
survive termination of this Agreement for a period of three (3) years. DCSD accepts and acknowledge that it inputs the information
and data into our Software, including any Student personal information deemed necessary and that Edmentum has no control over
such input, that certain third parties may have access to such information and data to assist in enhancing the Software and in
facilitating DCSD Users use and access of the Software and that we may retain the data and information that you provide in
accordance with our normal retention and destruction practices on certain or our servers, SAN and/or cloud backups. Edmentum
acknowledges that such information shall only be shared and stored in compliance with applicable law, including Family Educational
Rights and Privacy Act (FERPA), 20 USC 1232g, Protection of Pupil Rights Amendment (PPRA), 20 USC 1232h, Children’s Online
Privacy and Protection Act (COPPA) 15 USC 6501 et seq., Georgia Student Data Privacy, Accessibility and Transparency Act,
O.C.G.A. 20-2-660 et seq.
4.2.3 Compelled Disclosure. If by court order, legal requirement or regulatory authority the Receiver is forced to disclose Confidential
Information of the Discloser, the Receiver will (to the extent legally permitted) give the Discloser prompt notice of the order and will
provide, at the Discloser’s request and cost, reasonable assistance to contest the disclosure. Edmentum acknowledges that DCSD
is subject to the Georgia Open Records Act, O.C.G.A. 50-18-70 et. seq., and may be compelled by law to disclose Confidential
Information under the Act.
4.2.4 Remedies. If the Receiver discloses or uses (or threatens to disclose or use) any Confidential Information of the Discloser in breach
of this section, the Discloser will have the right, in addition to any other available remedies, to seek injunctive relief to prevent further
(or the threatened) disclosure.
4.3 Indemnities
4.3.1 Our Indemnification of You. Subject to the conditions described below and the provisions of section 4.6, we will defend, indemnify
and hold you harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims,
demands, suits, or proceedings (collectively called “Claims”) made or brought against you by a third party, as follows:
a. For Personal Injury or Property Damage. Our indemnity covers Claims alleging personal injury or property damage to the
extent caused by the willful misconduct or gross negligence of our personnel while on your premises.
b. For Infringement. Our indemnity covers Claims alleging that your Users use of the Software in accordance with the terms of
this Agreement, or any Materials furnished by us in connection with this Agreement infringes the intellectual property rights of a
third party. We will have no indemnification obligations or other liability for any claim of infringement or misappropriation to the
extent (a) based on specifications or directions you provided, (b) your use of a superseded or altered version of some or all of
the Software or Materials if infringement would have been avoided by the use of a subsequent or unaltered release of the
Software or Materials provided to you or (iii) your use occurs in a jurisdiction other than the United States. If the Software
becomes, or in our opinion is likely to become, the subject of an infringement claim, we may, at our option and expense, either
procure for you the right to continue using the Software; replace or modify the Software so that it becomes non-infringing and
remains functionally equivalent; or require the return of the affected Software and refund you the portion of your purchase price
attributable to the returned product for the remaining Subscription Period.
Edmentum DCSD Custom Service Purchase and Software License Terms Dekalb CSD rev 2022.05.31 // Page 3 of 5
4.3.2 HELD
4.3.3 Conditions. These indemnities will be conditioned on the party seeking indemnity: (a) promptly providing the other with a written
notice of the Claim; (b) giving the other party sole control of the defense and settlement of the Claim, provided that the other party
may not settle any Claim unless the party seeking indemnity is unconditionally released from liability; and (c) at no charge, providing
the other party with all reasonable assistance relative to the defense of the Claim.
4.3.4 Exclusive Remedies. Our and your exclusive indemnification responsibilities are stated in this section 4.3.
4.4 Care of Customer Data. We will make periodic backups of Customer Data you enter into our Software and will otherwise use reasonable
commercial care, consistent with general industry practice, to protect such Customer Data against loss. We are not responsible for lost
Customer Data. You will be responsible for the maintenance of Customer Data held in our Software or learning management syste ms and
for replacing it if it is lost or destroyed for any reason.
4.5 Force Majeure. The term “Force Majeure” means circumstances beyond the reasonable control of a party (such as acts of God,
government restrictions, wars, insurrections, labor strife, or failure of suppliers, communication or data systems, subcontractors, or carriers)
which delay or prevent the party from performing under the terms of this Agreement. Affected performance obligations will be suspended
during the duration of the Force Majeure. In the event the Force Majeure persists for more than 90 days, the other party may terminate the
affected portions of this Agreement upon written notice.
4.6 Disclaimers, Limitations and Exclusions.
4.6.1 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 1.7 OR 3.4 OF THIS AGREEMENT, WE MAKE NO
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
4.6.2 Limitation of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS (WHICH ARE LIMITED TO $50,000 IN
THE AGGREGATE FOR ALL CLAIMS AGAINST EITHER PARTY IN ANY CALENDAR YEAR), IN NO EVENT WILL EITHER
PARTY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT, INDEMNIFICATION OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY
PAID BY YOU TO US UNDER THE APPLICABLE ORDER FORM DURING THE PRIOR TWELVE MONTHS. THE ABOVE
LIMITATION WILL NOT APPLY TO EITHER PARTY IN THE EVENT YOUR STATE STATUTES ARE FOUND TO GOVERN THIS
AGREEMENT AND THEY SPECIFICALLY PROHIBIT A LIMITATION OF LIABILITY PROVISION.
4.6.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER
FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, LIQUIDATED, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.7 U.S. Governmental Users. The Software and Documentation are "Commercial Items," as defined at 48 C.F.R. §2.101, and are licensed
subject to Restricted Rights applicable to Commercial Items and only with those rights expressly granted under this Agreement. The U.S.
Government will not be entitled to technical information that is not customarily provided to the public or to use, modify, reproduce, release,
perform, display, or disclose the Software or Documentation except as allowed under this Agreement.
4.8 Term and Termination
4.8.1 Term of this Agreement. This Agreement will begin on the Order Form Date and will, unless earlier terminated in accordance with
this section, continue in effect until the end of the last Subscription Period identified in the applicable Order Form.
4.8.2 Termination for Cause. A party may terminate this Agreement for cause: (i) 30 days after written notice of a material breach to the
other party if such breach remains uncured at the expiration of such period; or (ii) if the other party ceases to conduct business in the
ordinary course, files a petition for liquidation bankruptcy, fails to have an involuntary petition for bankruptcy dismissed or converted
to a non-liquidation bankruptcy within 60 days after filing, or makes an assignment of essentially all assets for the benefit of creditors.
If terminated by Edmentum, it shall refund a pro-rated share of fees paid by DCSD for remainder of the license term to DCSD within
thirty (30) days of the date of termination for cause.
4.8.3 Outstanding Fees. Termination will not relieve DCSD of the obligation to pay any fees payable to Edmentum for services used prior
to the effective date of termination.
4.9 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: 1.6, 1.7, 2.1, 4.2, 4.3.1,
4.3.2, 4.3.4, 4.6, 4.9 and 5.0.
4.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement
in its entirety without your consent, in connection with a transaction involving a sale of all or substantially all of our as sets or equity through
merger or otherwise. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section will be void
and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and
permitted assigns.
4.11 Student/Parent Consents and Communication. You are responsible for obtaining any necessary or legally required consents from
students, parents and/or guardians related to your Users access and use of the Software. To the extent that your license incl udes our
providing a virtual instructor associated with the licensed content, you accept and acknowledge that such virtual instructor may periodically
be communicating with students and their parents and/or guardians.
Edmentum DCSD Custom Service Purchase and Software License Terms Dekalb CSD rev 2022.05.31 // Page 4 of 5
4.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, proposals
or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement
will be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in these
Custom Terms and an Order Form, the terms of the Order Form will prevail.
4.13 Governing Law. This Agreement will be governed by the internal laws of the State of Georgia, without regard to its conflicts of laws rules.
Sole venue for any action brought related to a conflict arising under this Agreement shall be in an appropriate state court of DeKalb County,
Georgia, or federal court within the Northern District of Georgia.
4.14 Third Parties. There are no third-party beneficiaries to this Agreement.
4.15 Notices. All notices under this Agreement will be in writing and will be deemed given upon: (a) personal delivery; (b) the second business
day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by
confirmed email. Notices to us will be addressed to the attention of Director of Customer Finance. Notices to you will be add ressed to the
attention of the person signing the Order Form for you.
4.16 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint
venture, agency, fiduciary or employment relationship between the parties.
4.17 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be
subject to modification by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent
permitted by law, and the remaining provisions of this Agreement will remain in effect.
4.18 Waiver. No failure or delay by either party to exercise a right under this Agreement will be a waiver of that right.
5.0 DEFINITIONS
o “Concurrent License” means a Software license that may be accessed during the Subscription Period by any User, but may only be accessed by
one individual User at a time.
o “Course Enrollment” shall mean a Consumable License plus the non-exclusive services of a virtual instructor qualified to provide online teaching
services associated with the Consumable License.
o “Consumable License” means a Software license to a single course assigned to a single, Named User. Within thirty days of the date in which a
Consumable License is made available to a Named User, you may remove that Named User and reassign the Consumable License to a different
Named User for future use although such reassignment shall not extend the original Subscription Period. The Subscription Period for a Consumable
License begins upon the earlier of (i) when the course content is first accessed by any Named User or (ii) sixty days following the date that access is
first made available to a Named User, and ends one year later.
o “Customer Data” means all electronic data, materials and other information you and/or your Users have entered or stored in the Software, including, but
not limited to data and records relating to student information, performance or use, your teacher data and supplemental instructional materials.
o “Documentation” means the technical specifications and/or functionality particulars regarding the Software that we provide you with the Order Form,
if any.
o “Materials” means those materials that we provide you, if any, in connection with your Software license and/or Professional Services purchases that
your Users can use solely for their internal educational purposes during the applicable Subscription Period.
o “Named User” means a specific Student User identified by name and designated as the sole Student User of the specific license.
o “Order Form” means the Order Form prepared and offered by us and returned to us by you indicating your acceptance of the terms and conditions
of this Agreement. To the extent that you fail to execute and return the applicable Order Form to us, you accept and acknowledge that by using the
Software (or any of your Users using the Software), you agree to the terms and conditions of this Agreement.
o “Reusable License” means a Software license whereby only one Named User is designated to use the license at a time, but may be reassigned to
another Named User during the Subscription Period. While a Reusable License is assigned to a specific Named User, it may not be used by any
other Student User at any time until reassigned to another Named User.
o “Software” means the online educational software that is identified on the Order Form that we make available to your Users via our Internet-based
learning management system. The term “Software” includes both our Software and Third Party Software.
o “Professional Services” means the services identified on the Order Form that we agree to provide to you to assist in your implementation and/or
on-going use of the Software.
o “Students” means those of your students that are provided access to the Software.
o “Site License” means a Software License that may be accessed during the Subscription Term by all authorized Users located in the specific physical
site identified on the Order Form.
o “Program License” means a Software License that may be accessed during the Subscription Term by the authorized number of Users identified on
the Order Form.
o “Subscription Period” means the period of time during which you will have access to the Software you license under the Agreement. This period
will begin with the start date identified in the applicable Order Form or upon processing of your PO in the event that dates are not identified upon the
Order Form, and (unless earlier terminated, suspended or revoked in accordance with the Agreement) will last for the duration of your Software
license access identified on the Order Form.
o “Third Party Software” means software or content that we license from a third party for license to our customers under licensing terms and conditions
specified by the producer.
o “Third Party Services” means the services that you purchase from us that are identified on the Order Form and that are performed by an entity or
individual other than our employees and independent contractors.
o “Users” means those Students that you supply (or authorize us to supply) user identifications and passwords to and for which you’ve purchased an
adequate quantity of the applicable Software licenses for. Users may include one or more Students.
o “We”, “Us” or “Our”, whether or not capitalized, refer to the entity or entities identified on the first page of the Order Form (Edmentum, Inc., or
Education City, Inc.).
Edmentum DCSD Custom Service Purchase and Software License Terms Dekalb CSD rev 2022.05.31 // Page 5 of 5