MAIN SERVICES AGREEMENT
February 14, 2022 version
The terms and conditions of this Main Services Agreement (with all attached exhibits and referenced
documents and links, the “Main Services Agreement”), and combined with active Quotes and Statements of
Work for Professional Services or any other duly executed documents referencing this Main Services
Agreement, will constitute the “Agreement,” as may be amended from time to time. The Quotes and SOWs
may be collectively referred to as the “Transaction Documents.”
This Agreement is entered into by and between the applicable PowerSchool Contracting Entity (as
defined below) (“PowerSchool”) and Customer (as defined below) and governs Customer’s access
and use of PowerSchool Offering(s) (as defined below). This Agreement is effective and accepted on
the earliest of the following: (i) the date that the last Party directly signs this Main Services Agreement,
(ii) the date that the last Party signs the Quote that references this Main Services Agreement, or (iii)
the date on which Customer accesses the PowerSchool Offering (the “Effective Date”). Each
PowerSchool and Customer is individually referred to as a “Party” and collectively as the “Parties.”
Any other agreements, proposals, purchase orders, representations or understandings, made verbally or in
writing, are superseded in their entirety by this Agreement.
Exhibits: Below is a list of exhibits incorporated into this Agreement.
Exhibit A: PowerSchool Support Policy and Service Level Agreement
https://www.powerschool.com/Exhibit A-Support-Policy-SLA_Feb2022/
Exhibit B: Professional Services Policy
https://www.powerschool.com/Exhibit B-Professional-Services-Policy_Feb2022/
Exhibit C: Data Privacy Agreement
https://www.powerschool.com/Exhibit C-Customer-DPA_Feb2022/
Exhibit D: Product Specific Terms
https://www.powerschool.com/Exhibit D-Product-Specific-Terms_Feb2022/
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1. DEFINITIONS. and all, now or hereafter in existence, unpatented
inventions, patent applications, patents, design rights,
1.1. “Account Country” is the country copyrights, Trademarks, mask work rights, know-how,
associated with the Customer account. If Customer trade secret rights, moral rights, database protection,
has provided a valid tax registration number for and all other intellectual property and proprietary rights,
Customer’s account, then Customer’s Account modifications, adaptations, derivatives thereof, and
Country is the country associated with such tax improvements thereto, and forms of protection of a
registration. If Customer has not provided a valid tax similar nature anywhere in the world.
registration, then Customer’s Account Country is the
country where the Customer billing address is 1.9. “Licensed Site(s)” means the internet
located. address of the web-based location for accessing a
SaaS Subscription, or for a location of an on-premise
1.2. “Customer” means the school, school implementation under an On-Premise Subscription for
district, or other entity that purchases one or more of any PowerSchool Software listed on a PowerSchool
the Services, as identified on the applicable Quote. Quote.
1.3. “Customer Data” means all data, files, 1.10. "PowerSchool Contracting Entity" means
documents and records uploaded to a Subscription the entity identified in the table below, based on
Service or transmitted to PowerSchool under this Customer’s Account Country.
Agreement by or on behalf of the Customer.
1.4. “De-identified Data” means information
Account PowerSchool Mailing
that cannot reasonably be used to infer information Country Contracting Address
about, or otherwise be linked to, a particular individual Entity
or User provided that the data processor: (a) takes PowerSchool
reasonable measures to ensure that the information Canada ULC
PowerSchool 150 Parkshore
cannot be associated with an individual or User; (b) Canada
Canada ULC Drive, Folsom,
publicly commits to maintain and use the information CA 95630
in de-identified form and not to attempt to re-identify PowerSchool
the information, except that the data processor may Group LLC
PowerSchool 150 Parkshore
attempt to re-identify the information solely for the United States
Group LLC Drive, Folsom,
purpose of determining whether its de-identification CA 95630
processes satisfy the requirements of this definition; PowerSchool
Any other
and (c) contractually obligates any recipients of the country that is Group LLC
information to comply with the terms of this definition. PowerSchool 150 Parkshore
not Canada,
Group LLC Drive, Folsom,
1.5. “Documentation” means user manuals the United
States, or CA 95630
describing the functionality, features and operating India1
characteristics of the applicable PowerSchool
Software that are delivered or made available to 1.11. “PowerSchool Offering” means any
Customer by PowerSchool or through the Subscription Service(s), Licensed Third-Party Software
Subscription Service, including any updates thereto. and/or Professional Services provided to Customer or
described on a Quote.
1.6. “Embedded Applications” means
1.12. "PowerSchool Software” means
software applications developed by third parties that
PowerSchool’s proprietary software applications and
resides within PowerSchool’s proprietary software as
the associated Embedded Applications, as further
part of the Subscription Services.
described in the applicable Quote, including any and all
1.7. "Excluded Claims” means claims or updates and subsequent versions thereto.
liability arising out of: (a) Customer’s Breach of PowerSchool Software does not include Third-Party
Section 2.4 (Restrictions) or Section 4 (Proprietary Software.
Rights); (b) a Party’s breach of its obligations in
1.13. “Professional Services” means the
Section 5 (Confidentiality) (including obligations
services that are identified and described on a Quote
and/or claims relating to Customer Data); or (c) either
and/or a Statement of Work, which services my include
Party’s indemnity obligations under Section 10
setup, implementation, configuration, training,
(Indemnification).
education, consulting, customization and other
1.8. “Intellectual Property Rights” means any professional services.
1 PowerSchool Offerings in India are under a different Main
Services Agreement.
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1.14. “Provincial Reporting Code” or “PRC” 1.21. "Term" has the meaning set forth in Section
means PowerSchool Offering that may be available 13.1 (Agreement Term).
only to Canadian-based Customers to assist 1.22. "Third-Party Software" means software
Customer in meeting specific provincial reporting products supplied or developed for a particular purpose
requirements and that is designated as Provincial by someone other than PowerSchool. Third-Party
Reporting Code by PowerSchool. Software does not include Embedded Applications.
1.15. “Quote” means PowerSchool’s standard 1.22.1. “Licensed Third-Party Software”
order form that (i) specifies the PowerSchool Offering means Third-Party Software licensed by PowerSchool
and other services provided to Customer; (ii) bundled with a Subscription Service.
references this Agreement or the applicable
1.22.2. “Other Third-Party Software” means
agreement; and (iii) is signed or incorporated to or
Third-Party Software not licensed by PowerSchool.
referenced in a signed agreement by authorized
representatives of both Parties. Unless otherwise 1.23. “Trademarks” means all trademarks,
agreed in writing by the Parties, Customer’s issuance service marks, trade dress, logos, slogans, trade
of a purchase order is deemed as acceptance of the names, business names, fictitious business names,
terms and conditions set forth in the applicable Quote. and other source identifiers, including domain names,
together with all translations, adaptations, derivations,
1.16. “State Reporting Code (or SRC)” means
and combinations thereof, whether registered or
the PowerSchool Offering that may be available to
unregistered (as the case may be), and including all of
Customer to assist Customer in meeting specific state
the goodwill of the business related to the foregoing.
reporting requirements and that is designated as
State Reporting Code by PowerSchool. 1.24. "Transaction Data" means system usage
information of a User(s) who progresses through the
1.17. “Statement of Work” or “SOW” means a
applications and functions of a PowerSchool Offering.
statement of work document that references this
Agreement and describes the scope of work to be 1.25. "User(s)" means individuals authorized by
performed, including, without limitation, any the Customer to access PowerSchool Software.
applicable (i) milestones and dependencies, (ii) User(s) will include authorized representatives of the
methodologies, (iii) technical requirements (iv) project Customer, teachers, students, parents and/or student
responsibilities; and (iii) estimated or actual pricing. guardian(s), and applicants as applicable to the
respective PowerSchool Software.
1.18. "Subscription Services” means the On-
Premise Subscription(s) and SaaS Subscription(s)
provided to Customer by PowerSchool.
1.18.1. "On-Premise Subscription” mean
provision of the PowerSchool Software for installation
on servers on Customer’s premises for a defined
period as identified on the applicable Quote and
hosted by Customer or its designated third-party
hosting provider, including any accompanying
Support Services.
1.18.2. “SaaS Subscription” means
subscription-based access to certain PowerSchool-
Software as a cloud-based service provided to
Customer pursuant to this Agreement, now or in the
future, including any accompanying Support
Services.
1.19. "Subscription Term” has the meaning set
forth in Section 13.2 (Subscription Term).
1.20. “Support Services” means maintenance
and support for the PowerSchool Software provided
under this Agreement, as further defined and
described in Exhibit A (Support Policy and Service
Level Agreement). PowerSchool will provide the
applicable Support Services as part of the
Subscription Services subject to the terms of this
Agreement.
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2. POWERSCHOOL OFFERING AND purposes of Customer and only for Licensed
RESTRICTIONS. Sites. Customer shall not exceed the maximum
quantity for the Subscription Services as stated
2.1 SaaS Subscription Services. If
in the Quote without additional payment.
Customer makes all payments on time,
PowerSchool will: (a) make the SaaS 2.4.2 Customer will not, and will not
Subscription available to the Customer and for permit Users or third parties to: (a) sell, rent,
the contracted quantity at each Licensed Site in lease, license, distribute, provide access to,
conformance with the applicable sublicense, or otherwise make available any
Documentation; (b) provide applicable Subscription Service to a third party or in a
PowerSchool standard Support Services for the service bureau or outsourcing offering; (b) use
SaaS Subscription to Customer and Users, and any Subscription Service to provide, or
provide upgraded support if purchased, as incorporate any Subscription Service into, any
described in Exhibit A (Support Policy and general purpose data warehousing service for
Service Level Agreement); and (c) host the the benefit of a third party; (c) reverse engineer,
SaaS Subscription pursuant to the terms of the decompile, disassemble, modify, or otherwise
service level agreement set forth on Exhibit A attempt to derive source code or non-public
(Support Policy and Service Level Agreement). APIs to any PowerSchool Software, except to
Provision of the SaaS Subscription is subject to the extent expressly permitted by applicable law
the terms of the Agreement and the applicable (and then only upon advance written notice to
portions of the PowerSchool privacy policy (the PowerSchool); (d) write or develop any
“Privacy Policy”) located at derivative works based upon the PowerSchool
http://www.powerschool.com/privacy (as may Offering; (e) interfere with or disrupt the integrity
be updated from time to time. or performance of any PowerSchool Offering or
third-party data contained therein or any
2.2 On-Premise Subscription. Where
systems or networks; (f) use the Subscription
the Customer contracts for an On-Premise
Services to build similar or competitive products
Subscription and if Customer makes all
or services; (g) perform or publish any
payments on time, PowerSchool, during the
performance or benchmark tests or analyses
Subscription Term stated in the Quote, grants
relating to the Subscription Services, other than
the Customer a restricted, personal, non-
solely for Customer’s internal use; (h) remove or
exclusive, non-transferable, terminable access
obscure any proprietary or other notices
to use such On-Premise Subscription specified
contained in any PowerSchool Offering; or (i)
in the applicable Quote, only at the Licensed
use any robot, spider, data miner, crawler,
Sites, not to exceed the maximum quantity
scraper or other automated means to access or
identified on the applicable Quote. PowerSchool
index the PowerSchool Offering. Customer shall
shall provide applicable PowerSchool standard
not use plugins that are not approved by
Support Services for the On-Premise
PowerSchool.
Subscription to Customer and Users and
provide upgraded support if purchased, as 2.4.3 For any PowerSchool
described in Exhibit A (Support Policy and Offering that may include messaging, Customer
Service Level Agreement). understands that standard SMS (texting) fees
apply to all registered contacts who receive an
2.3 Professional Services.
SMS sent out via PowerSchool’s Offering.
PowerSchool will provide Professional Services
PowerSchool is responsible for payment for all
mutually agreed upon by the Parties via a
SMS sent FROM PowerSchool’s Offering.
Statement of Work pursuant to the terms of
Customer is responsible for ensuring parents or
Exhibit B (Professional Services Policy) and the
registered contacts receiving said SMS have
applicable Transaction Document.
opted into PowerSchool’s Offering program. If
2.4 Restrictions. Subscription requested by Customer, PowerSchool may
Service(s) will only be used as expressly provide Customer with appropriate materials
authorized by this Agreement and in compliance (letter to mail home to parent and best practices)
with all applicable laws and regulations. All to support the opt-in procedure. However,
rights not expressly granted to Customer herein Customer is solely responsible for obtaining
are expressly reserved by PowerSchool. legally required opt-in consents from
2.4.1 Customer will use the Customer’s Users, and for compliance with the
PowerSchool Offering(s) only for the internal Telephone Consumer Protection Act (“TCPA”).
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In no event will PowerSchool be liable for PowerSchool Software version to facilitate the
Customer’s use of SMS. PowerSchool will also provision of such new features.
not be liable for any delays in the delivery or 2.6 End-of-Life Policy. PowerSchool
receipt of any SMS messages attributable to reserves the right to discontinue a PowerSchool
Customer’s mobile service operator. Customer Software as part of its end-of-life (EOL) policy
represents and warrants that when using any upon providing advanced written notice to
PowerSchool Offering, Customer will comply Customer consistent with PowerSchool’s
with all applicable laws and regulations, standard policies and procedures. PowerSchool
including the TCPA and privacy laws. will use commercially reasonable efforts to
2.4.4 If unauthorized access to, or transition Customer to a substantially similar
use of, the Subscription Services occurs, PowerSchool Software. If PowerSchool does
Customer shall promptly notify PowerSchool. not have a substantially similar PowerSchool
Any attempted sublicense, assignment, or Software, then PowerSchool will credit to
transfer of any rights, duties, or obligations by Customer any unused portion of the prepaid fee
Customer in violation of this Agreement will be for such PowerSchool Software that is subject to
void. EOL. Such credit can be applied towards the
2.4.5 Customer shall be prohibited future purchase of a PowerSchool Offering
from performing penetration testing against within twelve (12) months of issuance. Unused
PowerSchool-hosted PowerSchool Offerings, credits will expire after twelve (12) months of
applications, data stores, or systems. their issuance.
Penetration tests, if not performed properly and
under the supervision and coordination of the 3. CUSTOMER DATA
PowerSchool information security team, can 3.1 Rights in Customer Data. As
have unintended consequences such as between Customer and PowerSchool,
corrupting data, unauthorized access to data, Customer is and will remain the sole and
and degradation of systems. exclusive owner of all right, title and interest in
2.4.6 PowerSchool may (or may and to all Customer Data, including all
ask Customer to) suspend or terminate any Intellectual Property Rights relating thereto,
User’s access to the PowerSchool Offering upon subject to the rights and permissions granted in
notice to Customer if PowerSchool reasonably this Section 4 (Proprietary Rights).
determines that such User has violated any of 3.2 Consent to Use Customer Data.
the terms of the Agreement. Customer hereby grants all such rights and
2.5 Updates to Subscription permissions in or relating to Customer Data to
Services. Over the course of the Term, PowerSchool, its subcontractors and sub-
PowerSchool may, in its sole discretion, update processors and the PowerSchool personnel as
or upgrade features, functionality, software, or are necessary or useful to provide and perform
user types that Customer and Users access the Subscription Services and deliver the
pursuant to a Quote; provided that such updates PowerSchool Offering or to prevent or address
will be at no cost to Customer and will not service or technical problems under this
materially degrade existing features and Agreement. Subject to PowerSchool’s rights
functionality. Accordingly, PowerSchool granted in this Section 3.2 and Sections 5.4 and
reserves the right to update and/or upgrade the 5.5 related to compelled disclosure and its rights
PowerSchool Software provided to Customer so with respect to Transaction Data and De-
that it remains current with the then-current Identified Data, PowerSchool will not share, rent
version of the PowerSchool Software available or sell the Customer Data with third parties
to PowerSchool’s customers generally. In without Customer’s express consent and will
addition, PowerSchool may release new treat such data as Confidential Information.
features, functionality, software, or user types PowerSchool agrees to execute a data
that are only available under a different pricing processing agreement or addendum in a form
model or on a version of PowerSchool Software and substance identical or substantially similar
other than the version Customer currently to the PowerSchool Data Privacy Agreement
accesses. In the event Customer desires to (“DPA”) set forth on Exhibit C.
purchase any new features, PowerSchool 3.3 Customer Obligations.
reserves the right, in its sole discretion, to
update Customer’s account, pricing model, or 3.3.1 In General. Customer will
ensure that its use of each PowerSchool
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Offering and all Customer Data is at all times by the terms of the DPA set forth on Exhibit D,
compliant with this Agreement, Customer’s with respect to the security of the Customer Data
privacy policies, and all applicable local, state, within the PowerSchool Offering. The Parties
federal and international laws, regulations and shall comply with said DPA and said DPA shall
conventions, including, without limitation, those supplement the terms of this Agreement.
related to data privacy and data transfer, 3.5 Security Training. Customer
international communications, and the agrees to require annual cyber security training
exportation of technical or personal data. for User(s) when reasonably applicable.
Customer is solely responsible for the accuracy, Customer will also require User(s) to utilize
content and legality of all Customer Data. multi-factor authentication to access computer
Customer represents and warrants that systems with PowerSchool Offering when
Customer has sufficient rights in the Customer available within the applicable PowerSchool
Data to grant the rights granted to PowerSchool Offering. Customer agrees to keep a record of
in Section 3.2 and that the Customer Data does such training and PowerSchool may request to
not infringe or violate the intellectual property, see them as part of compliance verification.
publicity, privacy or other rights of any third
party. Customer represents and warrants that 3.6 “Active Match” Activation.
Customer has either explicit consent or consent Where the Customer licenses the PowerSchool
under applicable law to collect Customer Data. Naviance product, the Customer hereby
expressly grants consent to the functionality
3.3.2 User ID and Password branded “ActiveMatch.” The college-planning
Protection. Customer will require that all Users function contained in the Naviance application
keep user identification (“ID”) and password includes certain features (collectively,
information strictly confidential and not share "Matching") that allow students to view
such information with any unauthorized person. information from and interact with
Customer is solely responsible for any and all PowerSchool’s higher education Intersect
activities that occur under all Customer subscribers ("Higher Education Institutions").
accounts. Matching is active upon implementation of
3.3.3 Notification. Customer Naviance. Customer hereby represents and
agrees to notify PowerSchool immediately in warrants having obtained voluntary informed
writing of any unauthorized use of Customer’s consent from the student's parent or legal
accounts, any unauthorized use or distribution of guardian prior to the use of the Naviance
PowerSchool Offering, or any other breach of product by Users. Matching may be turned on or
security of which Customer becomes aware and off at any time after implementation at the sole
will take all steps necessary to ensure that such discretion and control of Customer. For clarity,
unauthorized use or distribution is terminated. no student or Customer information is shared
3.3.4 Compatible Equipment. with any Higher Education Institution unless
Customer is responsible for obtaining and Customer has enabled Matching and the
maintaining an appropriate operating applicable student, via the student’s parent or
environment with the necessary hardware, legal guardian, has explicitly opted to send
operating system software and other items his/her information directly to the Higher
required to use and access PowerSchool Education Institution.
Offering. PowerSchool will not be responsible 3.7 Customer-Specific Data
for any incompatibility between PowerSchool Warehouse. If Customer executes a Quote to
Offering and any versions of operating systems, purchase a SaaS Subscription using certain
hardware, browsers, or other products not PowerSchool’s technology that requires the
specifically approved in writing by PowerSchool creation of a Customer-specific data
for Customer’s use with PowerSchool Offering. warehouse and subject to the terms of an
Customer grants to PowerSchool a non- executed DPA between Customer and
exclusive, royalty-free license to use Customer’s PowerSchool, Customer hereby acknowledges
equipment and software solely for the purpose and agrees that PowerSchool must create a
of enabling PowerSchool to perform its Customer-specific data warehouse of all
obligations under the Agreement. Customer Data provided to PowerSchool solely
3.4 Data Privacy and Security. for the purpose of providing the service
PowerSchool will abide by the terms of the DPA (“Customer-Specific Data Warehouse”), and
executed with Customer or, if none is executed, Customer hereby consents to the creation of
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such Customer-Specific Data Warehouse. PowerSchool’s products or services
Customer-Specific Data Warehouse will not be (collectively, “Feedback”), Customer grants to
aggregated or combined with any data of any PowerSchool a worldwide, perpetual,
other PowerSchool customers. irrevocable, royalty-free, and transferable
license to use and incorporate into PowerSchool
4. PROPRIETARY RIGHTS Offering and PowerSchool Software any
Feedback (excluding any Customer Confidential
4.1 PowerSchool Offerings and Information contained in the Feedback).
Software. PowerSchool and its licensors solely
and exclusively own all right, title, and interest, 4.5 PowerSchool Trademarks.
including all related Intellectual Property Rights, PowerSchool exclusively owns all of its
in and to the PowerSchool Offering and Trademarks, including, without limitation, the
PowerSchool Software. This Agreement is not a PowerSchool name, the PowerSchool logo, and
sale and does not convey to Customer any other owned brands and product names
rights of ownership in or related to the associated with the PowerSchool Offering. No
PowerSchool Offering or PowerSchool right or license is granted by this Agreement to
Software, or the Intellectual Property Rights their use.
owned or licensed by PowerSchool. Customer 4.6 Customer Trademarks. Customer
will not accrue any residual rights to the exclusively owns all of its Trademarks, including,
PowerSchool Offering, including any rights to without limitation, the Customer name and logo.
the Intellectual Property Rights in connection 4.7 No Use of Trademarks. Neither
therewith. Party nor its affiliates shall use the other Party’s
4.2 Transaction Data. Trademarks in any form or substance in any
Notwithstanding anything to the contrary in this medium or for any purpose without the other
Agreement, PowerSchool has the right to collect Party’s prior written consent (which consent can
and use Transaction Data for internal research be via e-mail if such e-mail is from an authorized
and to develop, improve, support, and operate representative of the consenting Party.).
its products and services during and after the 4.8 Marketing. Notwithstanding the
Term. foregoing Section 4.7 and subject to Customer’s
4.3 De-Identified Data. trademark usage guidelines, Customer grants
Notwithstanding anything to the contrary, PowerSchool a non-exclusive, worldwide,
Customer hereby agrees and acknowledges royalty-free right to include Customer’s
that PowerSchool shall have the right to Trademark and other related transactional
process, aggregate and analyze De-Identified information (including enrollment count, names
Data relating to the provision, use and of all PowerSchool Offering ordered by
performance of various aspects of the Customer, etc., but excluding pricing) in any
PowerSchool Offering and related systems and customer listing appearing on or in any
technologies, and PowerSchool will be free PowerSchool websites, brochures, fliers,
(during and after the Term) to: (i) use such De- presentations, press releases, annual reports
identified Data to improve and enhance the and any other marketing materials. Customer
PowerSchool Offering and PowerSchool may withdraw or terminate the foregoing license
Software and for other development, diagnostic at any time by providing PowerSchool with thirty
and corrective purposes in connection with the (30) days’ prior written notice of its intent to
PowerSchool Offering, PowerSchool Software, terminate. Such notice of withdrawal or
and other PowerSchool products and services, termination must be sent via e-mail to
and (ii) disclose De-identified Data solely in champions@powerschool.com with a copy to
connection with its business, including, without legal@powerschool.com, and the email subject
limitation, for training, marketing and line must state “Trademark Consent
promotional efforts. Withdrawal.” After such thirty (30) day period,
4.4 Feedback. If Customer or any User PowerSchool will remove Customer’s
elects to provide PowerSchool with any Trademarks from its website and cease from
suggestions, comments, improvements, creating any new marketing material containing
enhancement requests, recommendations, the same. Notwithstanding the foregoing,
corrections, ideas or other feedback relating to PowerSchool’s right to continue to use any
the PowerSchool Offering or any other marketing materials produced, published, or
disseminated prior to such termination will
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continue until the supply, publication, (ii) is known by the Receiving Party at the time
dissemination and/or use of such materials is of receiving such information; (iii) is or becomes
exhausted or terminates. If PowerSchool lawfully available from a third party without
requests, Customer agrees to participate in a restriction; (iv) is hereafter furnished to the
case study, press release and/or cooperate with Receiving Party by a third party having the legal
PowerSchool in speaking to the media, and to right to do so and without restriction on
speak at a future PowerSchool event. disclosure; or (v) is independently developed by
the Receiving Party without the aid, , application
or use of the Confidential Information.
5. CONFIDENTIALITY.
5.3 Protection of Confidential
5.1 Confidential Information. In
Information. Except as expressly allowed in
connection with this Agreement, each Party (as this Agreement, the Receiving Party shall: (a)
the "Disclosing Party") may disclose or make keep completely confidential and will not publish
available Confidential Information to the other or otherwise disclose the Disclosing Party’s
Party (as the "Receiving Party"). Subject to Confidential Information to any third party except
Section 5.2 (Exclusions), "Confidential
to: (i) its affiliates, employees, consultants,
Information" means non-public information in
contractors, sub-processors, or agents having a
any form or medium (whether oral, written, need to know (and only to the extent needed)
electronic or other) that the Disclosing Party and who have signed confidentiality agreements
considers confidential or proprietary, including with the Receiving Party containing protections
information consisting of or relating to the not materially less protective of the Confidential
Disclosing Party’s technology, trade secrets,
Information than those of this Agreement; or (ii)
know-how, business operations, plans, its legal, financial or other professional advisors
strategies, customers, suppliers, as reasonably necessary, and (b) use the
subcontractors, and pricing, and information Disclosing Party's Confidential Information only
with respect to which the Disclosing Party has in connection with the performance of its
contractual or other confidentiality obligations, in obligations under this Agreement. The
each case whether or not marked, designated or
Receiving Party shall protect the proprietary
otherwise identified as “confidential.” Without nature of the Confidential Information with no
limiting the foregoing, the PowerSchool Offering less care than it uses with respect to its own
are the Confidential Information of Confidential Information and, in any event, no
PowerSchool, and subject to Section 5.5 (Public less than reasonable care. The Receiving
Records Act), the terms of this Agreement and
Party’s obligations under Section 5
each Transaction Document are Confidential
(Confidentiality) shall survive the termination or
Information of PowerSchool. For purposes of expiration of this Agreement and continue in
this Section, Customer Data and any other effect thereafter for a period of five (5) years with
Customer information or data labeled or respect to Confidential Information that does not
identified as confidential at the time of disclosure qualify as a trade secret under applicable law,
to PowerSchool are the Confidential Information
and, with respect to Confidential Information that
of Customer. To the extent the Parties executed
qualifies as a trade secret under applicable law,
a non-disclosure agreement prior to the in perpetuity after the termination or expiration of
Effective Date (the “Prior NDA”), such Prior the Agreement.
NDA shall govern the confidential information
exchanged by the Parties under the Prior NDA 5.4 Compelled Disclosure. If the
and the confidentiality obligations of this Receiving Party is required (by oral question,
Agreement shall govern the exchange of interrogatories, requests for information or
Confidential Information by the Parties under documents, subpoena, civil investigative
this Agreement starting on the Effective Date. demand or similar process) by any
governmental entity or court order or pursuant to
5.2 Exclusions. Confidential Information applicable law or rules of a stock exchange to
does not include and the obligations of this
disclose or provide any Confidential Information
Section 5 will not extend to any information that of the Disclosing Party (including disclosure that
the Receiving Party can reasonably is reasonably necessary in prosecuting or
demonstrate by written or other documentary defending litigation), the Receiving Party will
records: (i) is now, or hereafter becomes, provide the Disclosing Party with written notice
publicly known or available through no act or
of such request or demand as promptly as
failure to act on the part of the Receiving Party;
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practicable under the circumstances so that the PowerSchool Quote or invoice will be in United
Disclosing Party will have an opportunity to seek States dollars unless otherwise specified.
an appropriate protective order. The Receiving 6.2 Enrollment Increases. Pricing for
Party agrees to take, and cause its employees, access to PowerSchool Offering may be a fixed
contractors, and representatives to take, at the fee or may be based on the quantity and student
Disclosing Party's expense, reasonable steps enrollment count identified in the applicable
necessary to help the Disclosing Party seek to Quote. If fees are based on quantity or student
obtain confidential treatment by the Receiving count and Customer accesses PowerSchool
Party. Subject to the foregoing, the Receiving Offering with more than the quantity identified in
Party may thereafter disclose or provide any the applicable Quote, then PowerSchool may
such Confidential Information, as the case may submit an amended or supplemental invoice for
be, to the extent (and only in such amount) the amount of such excess usage, and
required by such law (as so advised by counsel) Customer will pay the fees applicable to the
or by lawful process or such governmental entity variance in accordance with the terms of the
or court order. applicable invoice. Any such increase in quantity
5.5 Public Record Act. Notwithstanding will be maintained through the end of the then-
anything herein to the contrary in Section 5.3 current term. Such additional fees will be
(Protection of Confidential Information), computed by multiplying the then-current per
PowerSchool acknowledges that, to the extent individual license and support fees for the
Customer is subject to public record acts or PowerSchool Offering by Customer’s additional
freedom of information acts, (a) PowerSchool User count.
will reasonably work with Customer to provide 6.3 Payment. Unless otherwise set forth
appropriate information in response to such in the applicable Quote or invoice, Customer
requests, to the extent such requested shall make all payments by electronic payment,
information is not PowerSchool’s proprietary check or wire transfer to such address or
information or otherwise exempted from account as specified on the invoice or otherwise
disclosure; and (b) Customer shall provide specified by PowerSchool in writing.
PowerSchool a reasonable opportunity to object PowerSchool may accept credit card payment;
to any such request as permitted under provided that credit card payments shall subject
applicable law. Customer to a transaction fee and a $250,000
transaction limit. Customer will pay a monthly
5.6 Injunctive Relief. The Receiving Party
charge of 1.5% (18% annually) on all amounts
acknowledges that disclosure of Confidential
not paid when due, or, if a lower maximum rate
Information may cause substantial harm for
is established by law, then such lower maximum
which damages alone may not be a sufficient
rate.
remedy, and therefore that upon any such
6.4 Tax Exempt Status. If Customer
disclosure by the Receiving Party, the
claims tax-exempt status, Customer agrees to
Disclosing Party will be entitled to seek
provide evidence of such tax exemption to
appropriate equitable relief in addition to
PowerSchool. To the extent that such tax
whatever other remedies it might have at law.
exemption cannot be properly claimed or does
not extend to certain taxes or transactions,
6. FEES AND PAYMENT.
Customer will be responsible for any and all
6.1 Fees. Customer agrees to pay
taxes and assessments that arise from this
PowerSchool, in accordance with the terms on
Agreement and related transactions (except for
the PowerSchool Quote and invoice, the fees
taxes based upon PowerSchool’s net income).
charged for the PowerSchool Offering and
6.5 Payment Dispute. If Customer
related services and/or other items ordered by
reasonably and in good faith disputes all or any
Customer, together with any other charges
portion of any invoice, Customer shall notify
made in accordance with this Agreement, and all
PowerSchool in writing of its objection within
applicable sales, use, value-added, or other
twenty (20) days from the date of the applicable
taxes or duties, however designated, except for
invoice, provide a detailed description of the
taxes based on PowerSchool’s net income.
reasons for the objection, and pay the portion of
Customer agrees to pay for PowerSchool’s pre-
the invoice which is not in dispute. If Customer
approved reasonable travel and lodging
does not object in a timely manner within this
expenses for Professional Services performed
time period, the amount invoiced shall be
at Customer’s premises. All fees set forth in any
conclusively deemed correct by the Parties. If
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the Parties are unable to resolve such payment terms will govern, but only as to the software
dispute within thirty (30) days from components subject to those terms.
PowerSchool’s receipt of Customer’s written Notwithstanding the foregoing, Customer
objection, each Party shall have the right to seek acknowledges that if any open-source software
any remedies it may have under this Agreement, component is licensed under terms that permit
at law or in equity, irrespective of any terms that Customer to modify such component, and if
would limit remedies on account of a dispute. Customer does modify such component, then
For clarity, any undisputed amounts must be PowerSchool will not be responsible for any
paid in full. incompatibility due to such modifications.
6.6 No Deductions or Setoffs. Subject
to Customer’s right to dispute an invoice under 8. WARRANTIES.
Section 6.5 (Payment Dispute), all amounts 8.1 Mutual Warranties. Each
payable to PowerSchool under this Agreement Party represents and warrants that: (a) it has the
shall be paid by Customer to PowerSchool in full full right, power and authority to enter into this
without any setoff, recoupment, counterclaim, Agreement and perform its obligations
deduction, debit or withholding for any reason. hereunder; (b) the individual accepting or
executing the Main Services Agreement or a
7. THIRD-PARTY SOFTWARE; EMBEDDED Transaction Document has the authority to bind
APPLICATIONS. such Party to the terms and conditions of this
7.1 Licensed Third-Party Software. Agreement; and (c) when accepted or executed,
Provision of Licensed Third-Party Software may this Agreement will constitute the legal, valid and
be subject to an additional cost. If PowerSchool binding obligation of each Party.
provides any Licensed Third-Party Software 8.2 Limited Warranty.
under this Agreement, PowerSchool shall be PowerSchool warrants that the PowerSchool
responsible for securing the licenses or Software included in the SaaS Subscription or
authorizations required from the applicable third On-Premise Subscription will operate in
parties to provide such Licensed Third-Party substantial conformity with the applicable
Software to Customer. Sections 6 (Fees and Documentation under normal use and
Payment), 7 (Third-Party Software; Embedded circumstances. If Customer notifies
Applications), 9 (Disclaimer of Warranties), 10 PowerSchool in writing of a breach of this
(Indemnification), and 11 (Limitation of Liability) warranty, PowerSchool will, at its option, either:
of this Agreement apply to Licensed Third-Party (a) use commercially reasonable efforts to
Software. correct the reported non-conformity, at no
7.2 Other Third-Party Software. Other charge to Customer, or (b) if PowerSchool
Third-Party Software is licensed directly to the determines such remedy to be impracticable,
Customer pursuant to separate license terms issue Customer a credit or refund of a portion of
between Customer and a third-party supplier. the fees pre-paid by Customer for the
Other Third-Party Software is not supported by nonconforming Subscription Service that fairly
PowerSchool. All support, warranties, and reflects (at PowerSchool’s reasonable
services related to Other Third-Party Software determination) the diminished value of the non-
are provided by the supplier of the Other Third- conforming Subscription Service. The foregoing
Party Software under such third party’s terms constitutes Customer’s sole and exclusive
and conditions, and not by PowerSchool. remedy for any breach of this limited warranty.
PowerSchool will have no obligations or liability This warranty will not apply: (i) unless Customer
regarding any Other Third-Party Software. makes a claim within thirty (30) days of the date
7.3 Embedded Applications. on which Customer first noticed the non-
PowerSchool Offering may contain Embedded conformity, or (ii) if the error was caused by
Applications. If any additional license terms are misuse, unauthorized modifications, or third-
identified in Exhibit D (Product Specific Terms), party hardware, software, or services.
Customer will comply with such conditions with
respect to such applications. Certain Embedded 9. DISCLAIMER OF WARRANTIES.
Applications may also be subject to “open EXCEPT AS EXPRESSLY SET FORTH IN
source” licensing terms. In some cases, the SECTION 8 (WARRANTIES),
open-source licensing terms may conflict with POWERSCHOOL OFFERING(S),
portions of this Agreement, and to the extent of POWERSCHOOL SOFTWARE AND THIRD-
any such conflict, the open-source licensing PARTY SOFTWARE ARE PROVIDED “AS IS”,
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AND POWERSCHOOL AND ITS LICENSORS Offering; or if (i) or (ii) is not possible after
EXPRESSLY DISCLAIM ALL OTHER reasonable commercial efforts from
WARRANTIES, EXPRESS OR IMPLIED, PowerSchool, then PowerSchool may terminate
INCLUDING, BUT NOT LIMITED TO, ANY this Agreement and credit a pro-rated return of
IMPLIED WARRANTIES OF unused portion of the fees prepaid by Customer
MERCHANTABILITY, TITLE, FITNESS FOR A for the applicable PowerSchool Offering.
PARTICULAR PURPOSE, AND NON- 10.1.2 Exclusions. The foregoing
INFRINGEMENT. POWERSCHOOL DOES indemnification obligation of PowerSchool will
NOT WARRANT THAT THE FUNCTIONALITY not apply to the extent the applicable claim
CONTAINED IN THE POWERSCHOOL arises from or is attributable to: (i) modifications
OFFERING WILL MEET CUSTOMER’S to the PowerSchool Offering(s) by any party
REQUIREMENTS, OR THAT THE other than PowerSchool or based on
OPERATION OF THE POWERSCHOOL Customer’s specifications or requirements; (ii)
OFFERING WILL BE UNINTERRUPTED OR the combination of the PowerSchool Offering(s)
ERROR- FREE, OR THAT DEFECTS IN THE with products or processes not provided or
POWERSCHOOL OFFERING(S) WILL BE authorized by PowerSchool; (iii) any
CORRECTED. NO ORAL OR WRITTEN unauthorized use, access, or distribution of the
INFORMATION OR ADVICE GIVEN BY PowerSchool Offering(s); or (iv) any action
POWERSCHOOL OR A POWERSCHOOL arising as a result of Customer Data, or any
REPRESENTATIVE WILL CREATE A deliverables or components not provided by
WARRANTY OR IN ANY WAY INCREASE THE PowerSchool.
SCOPE OF ANY WARRANTY. 10.1.3 Sole and Exclusive
POWERSCHOOL DOES NOT MAKE ANY Remedy. THIS SECTION 10.1
WARRANTIES AND SHALL HAVE NO (INDEMNIFICATION BY POWERSCHOOL)
OBLIGATIONS WITH RESPECT TO THIRD- SETS FORTH POWERSCHOOL’S SOLE
PARTY SOFTWARE. CUSTOMER MAY HAVE LIABILITY AND CUSTOMER’S SOLE AND
OTHER STATUTORY RIGHTS, BUT THE EXCLUSIVE REMEDY WITH RESPECT TO
DURATION OF STATUTORILY REQUIRED ANY CLAIM OF INTELLECTUAL PROPERTY
WARRANTIES, IF ANY, SHALL BE LIMITED INFRINGEMENT.
TO THE SHORTEST PERIOD PERMITTED BY 10.2 Data Breach Indemnification by
LAW. THE ABOVE EXCLUSIONS APPLY TO PowerSchool. Subject to Section 11 (Limitation
THE FULLEST EXTENT ALLOWED BY of Liability), PowerSchool hereby agrees to
APPLICABLE LAW. defend, indemnify, and hold harmless Customer
from and against any Liabilities to the extent
10. INDEMNIFICATION. arising out of or relating to any claim brought by
10.1 Intellectual Property a third party against Customer alleging a
Indemnification by PowerSchool. Subject to confirmed data breach (as defined by the
Section 11 (Limitation of Liability), applicable state law) to the extent attributable to
PowerSchool hereby agrees to defend, PowerSchool resulting from PowerSchool’s
indemnify, and hold harmless Customer from violation of the data security provisions
and against any and all losses, liabilities, costs, expressly set forth in this Agreement or the DPA
expenses and damages (collectively, executed between the Parties.
“Liabilities”) to the extent arising out of or 10.3 Indemnification by Customer. To
relating to any claim brought by a third party the extent permitted under applicable law,
against Customer alleging the use of the Customer agrees to indemnify and hold
PowerSchool Offering infringes or PowerSchool and its affiliates and each of their
misappropriates the Intellectual Property respective directors, officers, employees,
Rights of such third party. representatives and agents (collectively,
10.1.1 Mitigation. If Customer’s “PowerSchool Indemnitees”) harmless against
use of the PowerSchool Offering is enjoined or, and from any Liabilities, including reasonable
in PowerSchool’s reasonable opinion, is likely to legal fees (including but not limited to attorney’s
be enjoined, PowerSchool may (i) substitute for fees, costs and expenses), brought by a third
the PowerSchool Offering, a substantially and party against a PowerSchool Indemnitee to the
functionally similar product(s) and extent relating to or arising out of: (a) any
documentation; (ii) procure for Customer the Customer Data; (b) any information or content
right to continue using the PowerSchool (other than PowerSchool-provided content)
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transmitted or submitted by Customer or its 11.2 CAP ON MONETARY LIABILITY. TO
Users through the PowerSchool Offering or THE MAXIMUM EXTENT PERMITTED BY LAW
shared with any third party; (c) Customer’s AND EXCEPT FOR CLAIMS FOR FEES DUE
violation of Section 2 (PowerSchool Offering and TO POWERSCHOOL UNDER THIS
Restrictions), or Section 4 (Proprietary Rights); AGREEMENT AND EXCEPT FOR EXCLUDED
or (d) Customer’s gross negligence or willful CLAIMS, EACH PARTY’S AND ITS
misconduct. In addition, Customer shall AFFILILATES’ COLLECTIVE AGGREGATE
indemnify and hold PowerSchool Indemnitees LIABILITY TO THE OTHER PARTY OR ITS
harmless against and from any Liability brought AFFILIATES IN CONNECTION OR ARISING
against a PowerSchool Indemnitee or Customer OUT OF THIS AGREEMENT, THE
for alleged or actual violations of the TCPA in POWERSCHOOL OFFERING OR THE
connection with Customer’s use of or access to POWERSCHOOL SOFTWARE, UNDER ANY
any PowerSchool Offering. LEGAL OR EQUITABLE THEORY, SHALL NOT
10.4 Procedure. The indemnifying EXCEED THE TOTAL AMOUNTS ACTUALLY
Party’s obligations as set forth above are PAID BY CUSTOMER TO POWERSCHOOL IN
expressly conditioned upon each of the THE IMMEDIATELY PRECEDING TWELVE
following: (a) the indemnified Party will (12)-MONTH PERIOD FOR THE APPLICABLE
promptly notify the indemnifying Party in writing POWERSCHOOL OFFERING ON WHICH THE
of any threatened or actual Liability; provided CLAIM IS BASED. TO THE MAXIMUM EXTENT
that failure to provide such prompt notice will PERMITTED BY LAW, THE COLLECTIVE
not release the indemnifying Party from its AGGREGATE LIABILITY OF EACH PARTY
indemnity obligations except to the extent the AND ITS AFFILIATES FOR “EXCLUDED
indemnifying Party is materially prejudiced CLAIMS” SHALL NOT EXCEED THE TOTAL
thereby; (b) the indemnifying Party will have AMOUNTS ACTUALLY PAID BY CUSTOMER
sole control of the investigation, defense or TO POWERSCHOOL IN THE IMMEDIATELY
settlement of any Liability; (c) the indemnified PRECEDING TWENTY-FOUR (24)-MONTH
Party will fully cooperate with the indemnifying PERIOD FOR THE APPLICABLE
Party (at the indemnifying Party’s expense) to POWERSCHOOL OFFERING ON WHICH THE
facilitate the settlement or defense of any CLAIM IS BASED.
Liability; and (d) the indemnifying Party will not 11.3 EXCEPTIONS.
settle any claim or suit in a manner that results NOTWITHSTANDINGTHE FOREGOING, THE
in an admission of liability by the indemnified LIMITATIONS IN SECTION 11.1 (EXCLUSION
Party, without the indemnified Party’s prior OF DAMAGES) AND SECTION 11.2 (CAP ON
written consent, which consent shall not be MONETARY LIABILITY) SHALL NOT APPLY
unreasonably withheld, conditioned or delayed. TO LIABILITY ARISING OUT OF A PARTY’S
GROSS NEGLIGENCE OR FRAUD.
11. LIMITATION OF LIABILITY. 11.4 FAILURE OF ESSENTIAL
11.1 EXCLUSION OF DAMAGES. TO PURPOSE. THE PARTIES AGREE THAT THE
THE MAXIMUM EXTENT PERMITTED BY WAIVERS AND LIMITATIONS SPECIFIED IN
LAW AND EXCEPT FOR “EXCLUDED THIS SECTION 11 WILL SURVIVE AND APPLY
CLAIMS”, IN NO EVENT WILL EITHER REGARDLESS OF THE FORM OF ACTION,
PARTY OR ITS AFFILIATES BE LIABLE TO WHETHER IN CONTRACT, TORT
THE OTHER PARTY FOR ANY SPECIAL, (INCLUDING NEGLIGENCE), STRICT
EXEMPLARY, INDIRECT, INCIDENTAL, LIABILITY OR OTHERWISE AND WILL
PUNITIVE OR CONSEQUENTIAL DAMAGES; SURVIVE AND APPLY EVEN IF ANY LIMITED
OR LOST PROFITS, LOST FUNDING, LOST REMEDY SPECIFIED IN THIS AGREEMENT
SAVINGS, OR LOST OR DAMAGED DATA; IS FOUND TO HAVE FAILED OF ITS
OR FOR CLAIMS OF A THIRD PARTY, IN ESSENTIAL PURPOSE.
EACH CASE ARISING OUT OF THIS
12. INSURANCE. During the Term,
AGREEMENT, THE POWERSCHOOL
PowerSchool agrees to maintain insurance
OFFERING, OR THE POWERSCHOOL
coverage consistent with PowerSchool’s then-
SOFTWARE OR THE USE OR INABILITY TO
current certificate(s) of insurance. Upon
USE ANY OF THE FOREGOING, EVEN IF
execution of this Agreement, and one (1) time
SUCH PARTY HAS BEEN ADVISED OF THE
per calendar year upon Customer’s request,
POSSIBILITY OF SUCH DAMAGES OR THEY
PowerSchool shall provide Customer with
ARE FORESEEABLE.
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certificate(s) of insurance. Upon Customer’s involved in any fraudulent, misleading or
request, PowerSchool agrees to include unlawful activities relating to or in connection
Customer as a certificate holder on such with any of the PowerSchool Offering; or (c)
certificate(s) of insurance. PowerSchool will Customer is notified that an objective security
provide notice and updated certificate(s) of threat arises so great as to warrant immediate
insurance to Customer in the event of a action by PowerSchool to protect the security of
cancellation or other material change to the Customer Data and the PowerSchool systems,
insurance coverage(s) described in the including if the Subscription Services are
applicable PowerSchool certificate(s) of experiencing denial of service attacks, mail
insurance. For the avoidance of doubt, the flooding, or other attacks or disruptions outside
obligation for PowerSchool to maintain of PowerSchool’s control.
insurance coverage as set forth herein shall in 13.4 Termination for Breach. Either Party
no way impact the terms of Section 11 will have the right to terminate this Agreement in
(Limitation of Liability). whole or in part upon providing thirty (30) days’
written notice to the other Party, in the event the
13. TERM AND TERMINATION
other Party materially breaches this Agreement
13.1 Agreement Term. This Agreement and fails to correct such breach within such thirty
commences on the Effective Date and continues (30) day period; provided that PowerSchool will
until a Party terminates the Agreement pursuant have the right to terminate this Agreement
to the terms of this Agreement or until the Parties immediately upon providing written notice to
subsequently enter into a new agreement that Customer if Customer breaches any of its
supersedes this Agreement (the “Term”). obligations under Section 2 (PowerSchool Offering
13.2 Subscription Term. The subscription and Restrictions) or Section 4 (Proprietary
term of each Subscription Service (the Rights). Customer further acknowledges that, as
“Subscription Term”) will be as specified in the breach of the provisions of Section 4 may result in
applicable Quote, which specifies a start and irreparable injury to PowerSchool, PowerSchool
end date, provided that if the provision of the will have the right to seek equitable relief against
Subscription Service does not commence on the any actual or threatened breach thereof, without
start date identified on the Quote, then the start proving actual damages.
date will be deemed as the date of the 13.5 Termination for Non-Appropriation
provisioning of the Subscription Services to for Governmental Entities Only. The Parties
Customer. Except as otherwise specified in the acknowledge and agree that if Customer is a
applicable Quote, renewal of promotional or governmental entity that is bound to statutory
one-time priced subscriptions or licenses will be provisions that prevent it from committing to the
at PowerSchool’s discretion. payment of funds beyond its fiscal year, and if
13.3 Suspension. If Customer’s account is funds are not allocated for the PowerSchool
thirty (30) days or more overdue for any Offering captured in an applicable Quote that is
PowerSchool product or service (except with the subject of this Agreement following the
respect to charges then under reasonable and commencement of any succeeding fiscal year
good faith dispute), PowerSchool reserves the during which the Quote may continue, then
right, in addition to any of its other rights or Customer may terminate the applicable Quote
remedies, suspend Customer’s access to any without liability for any termination charges, fees,
PowerSchool Offering and/or its performance of or penalties at the end of its last fiscal period or
any of the Professional Services without liability the Subscription Term for which funds were
to Customer, until PowerSchool receives all appropriated, subject to Customer’s providing
amounts due. Suspension shall not relieve the required notice herein. Customer will be
Customer of its obligation to pay the entirety of obligated to pay all charges incurred through the
the fees due. In addition, PowerSchool will have end of the last fiscal period or Subscription Term
the right to suspend provision of the for which funds were appropriated. Customer
PowerSchool Offering or Professional Services will give PowerSchool written notice that funds
under this Agreement if: (a) Customer or User have not been appropriated and that Customer
accessed or used the PowerSchool Offering wants to terminate the Agreement: (a)
beyond the scope of the rights granted or for immediately after Customer receives notice of
purpose not authorized under this Agreement; such non-appropriation; and (b) at least thirty
(b) Customer or any User is or has been (30) days prior to the end of the applicable fiscal
period or Subscription Term. Customer will not
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utilize this clause as a right to terminate any Agreement, PowerSchool shall return to
Quote or this Agreement for convenience. Customer or delete the Customer Data in its
PowerSchool reserves the right to request, and possession, custody or control in accordance
Customer shall provide, documentation with the terms of the DPA, unless otherwise
evidencing such non-appropriation of funds. required by applicable law.
13.6 Additional Right. In addition to any
other termination rights, PowerSchool shall have 14. GENERAL PROVISIONS
the right to terminate this Agreement if Customer 14.1 Governing Law. Except otherwise
fails to make payment under any other agreed in writing by the Parties, this Agreement
agreement with PowerSchool and fails to cure will be governed by the laws depending upon the
material breach within thirty (30) days after account country location as listed in the table
receipt of written notice from PowerSchool. below. Except otherwise agreed in writing by the
13.7 No Other Termination Right. Except Parties, the venue listed in the table will be the
as expressly set forth in this Section 13, neither exclusive courts of jurisdiction and venue for any
Party has a right to terminate this Agreement or litigation, special proceeding or other
any Quote prior to its expiration. proceeding as between the Parties that may be
13.8 Effect of Termination. In the event of brought, or arise out of, in connection with, or by
any termination of all or any portion of this reason of this Agreement. Each Party hereby
Agreement, Customer will not be relieved of any consents to the jurisdiction of such courts. The
obligation to pay any sums of money that have United Nations Convention on Contracts for the
accrued prior to the date of termination. In International Sale of Goods will not apply to this
addition, the provisions of Sections 1 Agreement. This Agreement will not be subject
(Definitions), 4 (Proprietary Rights), 6 (Fees and to the Uniform Computer Information
Payment), 7 (Third-Party Software; Embedded Transactions Act.
Applications), 9 (Disclaimer of Warranties), 10
(Indemnification), 11 (Limitation of Liability), Account Venue Governing
13.8 (Effect of Termination), and 14 (General Country Law
Provisions) will survive termination or expiration Province of
of this Agreement. In the event that Customer Canada Victoria Ontario
enters into a multi-year Quote with PowerSchool San
and Customer terminates the Quote or any United States California
Francisco
portion thereof, Customer agrees to pay
PowerSchool the remaining sum due to Any other
PowerSchool through the stated term in the country that is
applicable Quote, as actual damages being San California
not Canada or
impossible to calculate. The immediately Francisco
the United
preceding clause will not apply in the event States
Customer terminates this Agreement as (a) a
result of PowerSchool’s material breach in
accordance with Section 13.4 (Termination for 14.2 Compliance Verification. During the
Breach), or (b) as a result of non-appropriation Term and for a period of one (1) year following
of funds in accordance with Section 13.5 termination of this Agreement, PowerSchool has
(Termination for Non-Appropriation). the right to verify Customer’s full compliance with
13.9 Return or Disposal of PowerSchool the terms and requirements of Section 2
Offerings. Immediately upon any termination of (PowerSchool Offering and Restrictions),
Subscription Service(s) under this Agreement, Section 4 (Proprietary Rights) and Section 6
Customer will, at its own expense, either return (Fees and Payment) of this Agreement.
to PowerSchool or destroy all copies of such Customer must (a) provide any assistance
PowerSchool Offering, and Customer’s reasonably requested by PowerSchool or its
authorized representative will forward written designee in conducting any such audit, (b) make
certification to PowerSchool that all such copies requested personnel, records, and information
of such PowerSchool Offering have either been available to PowerSchool or its designee, and
destroyed or returned to PowerSchool. (c) in all cases, provide such assistance,
13.10Return or Disposal of Customer personnel, records, systems access and
Data. Upon termination or expiration of the information in an expeditious manner to facilitate
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the timely completion of such compliance PowerSchool shall be to
verification. If such verification process reveals legal@powerschool.com. Notices delivered
any noncompliance, Customer must promptly personally are deemed given upon documented
cure any such noncompliance; provided, receipt or refusal by recipient to accept receipt.
however, that the obligations under this Section In the case of notices to PowerSchool, such
14.2 do not constitute a waiver of PowerSchool’s notices must be sent to:
termination rights and do not affect
PowerSchool’s right to payment for access to PowerSchool Group LLC,
PowerSchool Offering and other services and Attn: General Counsel
interest fees related to usage in excess of the 150 Parkshore Drive,
quantities purchased. Folsom, CA 95630
14.3 Amendment. This Agreement may legal@powerschool.com
only be amended or modified by a writing
specifically referencing the particular section(s) In the case of notices to Customer, such notices
of this Agreement to be modified and signed by will be sent to PowerSchool’s address of record
authorized representatives of the Parties. for Customer. Either Party may change its notice
14.4 Force Majeure. Neither Party will be address by notifying the other Party in like
liable to the other for any delay or failure to manner.
perform any obligation under this Agreement 14.8 Assignment. Neither PowerSchool
(except for a failure to pay fees owed) if the nor Customer shall assign or transfer this
delay or failure results from any cause beyond Agreement or any interest herein, by operation
such Party’s reasonable control, including acts of law or otherwise, without the prior written
of God or of a public enemy, acts of terrorism, consent of the other Party; provided, however,
war, United States or foreign governmental acts that PowerSchool may assign its rights and
or restrictions in either a sovereign or contractual obligations under this Agreement without the
capacity, labor strikes, fire, power outages, road consent of the Customer in the event
icing or inclement conditions, flood, epidemic or PowerSchool hereafter effects a corporate
pandemic as designated by the World Health reorganization, consolidates with, or merges
Organization, earthquakes, or tsunamis. into, any person or transfers all or substantially all
14.5 Severability. If any provision of this of its properties or assets to any entity. This
Agreement is held to be illegal, invalid, or Agreement will inure to the benefit of and be
unenforceable, that provision must be severed binding upon the Parties, their respective
or reformed to be enforceable, and the successors, executors, administrators, heirs and
remaining provisions hereof and thereof will permitted assigns.
remain in full force. 14.9 No Reliance. Each Party
14.6 No Waiver. No delay or omission by acknowledges that it has not made any promise
either Party in the exercise or enforcement of or representation that is not expressed in this
any of its powers or rights hereunder will Agreement; and that it has not been induced into
constitute a waiver of such power or right. A entering this Agreement by any representation
waiver by a Party of any provision of this about the nature and extent of its existing or
Agreement must be in writing and signed by potential claims or damages made by the other
such Party and will not imply subsequent waiver Party or by the other Party’s attorney,
of that or any other provision. representative, or agent. The Parties are not
14.7 Notices. All notices under this relying upon – and disclaim reliance upon – any
Agreement must be in writing and delivered and statement or representation that is not in this
will be deemed to have been received by the Agreement but are instead relying solely upon
addressee: (i) if given by hand, immediately their own judgment in consultation with their
upon receipt; (ii) if given by overnight courier respective attorneys.
service, the first business day following dispatch; 14.10 Background Checks. Given the
(iii) if given by registered or certified mail, nature of the data we process, PowerSchool
postage prepaid and return receipt requested (or conducts thorough nation-wide and province-
the equivalent delivery method in an wide background checks, including criminal
international jurisdiction), the second business records, terrorist watch list, sex offender
day after such notice is deposited in the mail; or database and a multi-panel drug test on all
(iv) if given by email, immediately upon employees. PowerSchool also requires its
confirmed receipt. Email notifications to contractors, under its separate agreement, to
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conduct a background check of its employees and conditions of the Agreement would be
before any assignment of services from substantially different.
PowerSchool to the Customer. 14.14 Attorney Fees. In the event any court
14.11 Export. Without in any way limiting action is commenced by one party against the
the restrictions on transfer set forth elsewhere in other with respect to any dispute arising out of
this Agreement, Customer specifically agrees this Agreement or any Transaction Document,
that Customer will not, directly or indirectly, the prevailing Party will be entitled to recover its
export or transfer any export-controlled out-of- pocket and court costs and reasonable
commodity, technical data or software: (a) in attorney fees relating thereto. The cost of in-
violation of any laws, regulations, rules, or other house legal staff will be valued at market rates
limitations imposed by any government authority; for comparable services from private
or (b) to any country for which an export license practitioners.
or other governmental approval is required at the 14.15 Entire Agreement. This Agreement
time of export, without first obtaining all and/or exhibits referenced herein, and any
necessary licenses or other approvals. addendums and amendments, constitute the
14.12 U.S. Government Restricted complete and entire agreement between the
Rights. PowerSchool Offering is a “commercial Parties with respect to its subject matter, and
item” as that term is defined in 48 C.F.R. §2.101, supersedes all prior discussions,
consisting of “commercial computer software” understandings, arrangements, proposals,
and “commercial computer software responses to proposals, and negotiations with
documentation” as such terms are defined in 48 respect to same. THE TERMS AND
C.F.R. §12.212 and 48 C.F.R. §227.7202, as CONDITIONS OF THIS AGREEMENT WILL
applicable, and all as amended from time to PREVAIL NOTWITHSTANDING ANY
time. Consistent with 48 C.F.R. §12.212, 48 VARIANCE WITH THE TERMS AND
C.F.R. §227.7202 and 48 C.F.R. §52.227-19, CONDITIONS OF ANY PURCHASE ORDER
and other relevant sections of the Code of OR OTHER DOCUMENTATION SUBMITTED
Federal Regulations, as applicable, and all as BY CUSTOMER WITH RESPECT TO
amended from time to time, all U.S. Government POWERSCHOOL OFFERING OR ANY
end users acquire PowerSchool Offering only SERVICES, AND POWERSCHOOL HEREBY
with those rights set forth herein. REFUSES ANY SUCH DIFFERENT OR
14.13 Essential Basis of the Agreement. ADDITIONAL PROVISIONS IN PURCHASE
Customer acknowledges and understands that ORDERS OR OTHER DOCUMENTS. The order
the disclaimers, exclusions, and limitations of of precedence is the executed Quote, then this
liability set forth in this Agreement form an Agreement, then any referenced and applicable
essential basis of the agreement between the exhibits and privacy policy, addendums, and
Parties, that the Parties have relied upon such amendments.
disclaimers, exclusions, and limitations of
liability in negotiating the terms and conditions
herein, and that absent such disclaimers,
exclusions, and limitations of liability, the terms
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EXHIBIT A
POWERSCHOOL SUPPORT POLICY AND SERVICE LEVEL AGREEMENT
The terms of this Exhibit A are found at https://www.powerschool.com/Exhibit A-Support-Policy-
SLA_Feb2022/.
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PowerSchool MSA
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EXHIBIT B
PROFESSIONAL SERVICES POLICY
The terms of this Exhibit B are found at https://www.powerschool.com/Exhibit B-Professional-Services-
Policy_Feb2022/.
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EXHIBIT C
DATA PRIVACY AGREEMENT
The terms of the PowerSchool Privacy and Security Agreement/Addendum are found at
https://www.powerschool.com/Exhibit C-Customer-DPA_Feb2022/.
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EXHIBIT D
PRODUCT SPECIFIC TERMS
The terms of this Exhibit D are found at https://www.powerschool.com/Exhibit D-Product-Specific-
Terms_Feb2022/.
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