Section 1- Cancellation:

Section 1.10 Effect of Termination.

Immediately following termination of this Agreement, Client shall cease using all Products.

a) Upon request, at no additional charge, Client may retrieve Client Data via Client's secure FTP site in the same format in which the Client Data was originally inputted into the Software. Alternatively, Client Data can be returned in a mutually agreed format at a scope and price to be agreed. Vendor will maintain a copy of Client Data for no more than six (6) months following termination of the Agreement, after which time any Client Data not retrieved will be destroyed.

b) At the end of the six (6) months all student and employee data must be purged in a manner compliant with COPPA, HIPAA and FERPA regulations. Upon destruction of the data vendor shall represent in writing to the District that it has destroyed all CDI and no longer has any CDI in its possession or control.

c) The District will destroy all physical copies of licensed product or control or terminate access to program.

Section 2 - Contract Administration:

Section 2.3 Inspection and Testing

For purposes of electronic media/ online programs, Inspection and Testing includes audits of CDI record retention. Testing for online resources may include access to a demo account for a specified period.

Section 2.5 Property of District:

Intellectual Property. As between the parties, Vendor will and does retain all proprietary and intellectual property rights, title and interest (Including, without limitation, all Intellectual Property Rights) in and to the Product. Client retains all ownership rights to Client Data and Client Content

Section 2.6 Advertising:

Communications. Neither party shall issue any press release using the name of the other party, videos or testimonials, as a customer or provider without the other party's consent (not to be unreasonably withheld or delayed).

Section 3 – Contract Amendments:

Section 3.3 Assignment and Delegation

In the event of a merger. Upon completion of the merger the District must be notified immediately. The new vendor will be provided with the opportunity to sign a “Consent to Assignment.” The contract will not automatically transfer to the new vendor.

Section 5 – Contract Interpretation:

Section 5.1. Governing law Jurisdiction.

This Agreement will be governed by and construed in accordance with the laws of the State of Arizona and the federal laws of the United States of America, without regard to conflict of law principles. Vendor and Client agree that any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought exclusively in the state or federal courts of the State of Arizona, located in the County of Maricopa, and each of Vendor and Client hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose an any suit, action or proceeding.

Section 5.2. - Order of Precedence.

In the event of a conflict in the provisions of the Contract as accepted by District, the following order of precedence shall prevail:

1st Solicitation Addendums

2nd Special Requirements of Solicitation/Evaluation Criteria

3rd General Terms and Conditions of Contract

4th Statement of Scope of Work/Specifications

5th Solicitation Attachments and Exhibits

6th Uniform Instructions for Offers

7th Offeror’s Master Agreement/ Statement of Use/ or like documents

In the event of a conflict between the Offeror’s Master Agreement/ Statement of User/ or like document and the Terms and Conditions of this Contract, Mesa Public Schools’ Terms and Conditions will supersede the Offeror’s documents.

Section 7 - Federal and State Requirements:

Section 7.1 Fingerprint Requirements

Background checks shall only apply to personnel in direct on-site contact with any school in the District.

Section 8 - Insurance and Safety

Section 8.2 Insurance (see separate entry for Insurance)

Section 8.6 Confidentiality

Each of the parties agrees; (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of Vendor providing Products; hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any Confidential Information for any purposes except carrying out such party's rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. (iv) Client is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Client agrees to immediately notify Vendor of any unauthorized use of Client’s account or any other breach of security known to Client. Vendor shall have no liability for any loss or damage arising from Client’s failure to comply with these requirements. " These obligations shall survive termination of this Agreement. If either party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.

Section 10 - Payment:

Section 10.5 Progress Payments

Progress payments are only applicable to software programs being developed on behalf of the District. Any existing programs are not subject to progress payments.

Section 11 - Price and Product Changes:

Section 11.1 Current Products:

Standard program updates that do not materially change the scope of the program, during the course of use will be accepted through the course of this contract.

Section 11.3.1

Price Increases

Awarded vendors will be given an opportunity to submit revised pricing or pricing structures during the renewal period each contract year. The new pricing/structures will be accompanied with a letter outlining the reasons for the increase or change in pricing structure. The District reserves the right to accept or reject the new pricing information. If the pricing is rejected the Awarded vendor will be given the opportunity to maintain the awarded pricing or withdraw from the contract.

Multiple Product Lines

An Offeror may offer multiple product lines in response to a specified Content Area. When offering multiple product lines, The Offeror shall complete all appropriate fields contained in the Solicitation price sheet for each primary product submitted.

Product Groups/Established Catalog/Price List

The Solicitation seeks Offers that cover a full range of products, product accessories, and options as contained in specific product manufacturers’ established catalog/price lists for the groups of products specified. As used in this Solicitation, “price list or catalog” shall mean a price list, schedule, or catalog regularly maintained by a manufacturer, distributor, or contractor and available for inspection by customers, unless otherwise disclosed to District in the Offer.

Volume and Other Discounts

District encourages the Offeror to consider and, in its discretion, include in its Offer discounts based on the volume of purchases by the Districts and members of a purchasing cooperative from the Contract awarded by District. If a volume discount is offered, the discount shall be defined and applied as an additional discount to any other discount price specified in the Offer. Such discounts include:

• A single purchase order of District from the Contract in excess of a dollar amount.

• Subsequent purchase orders of District from the Contract after a cumulative dollar amount has been met by previous purchase orders of District.

• Subsequent purchase orders of District or any cooperative member after a cumulative dollar amount has been met by previous purchased orders of District or any cooperative member from the Contract.

Other. Offerors may offer any other type of discount, rebate, or special pricing that will result in reduced pricing. Such discounts include electronic access ordering, prepayment plans, deposit accounts, and approval plans for agencies legally authorized to use them.

Section 12 - Relationship of Parties:

Section 12.2 Subcontractor –

Offeror shall require that any subcontractor or agent receiving CDI is authorized by the District to receive CDI and that the subcontractor or agent expressly agrees to be bound to the terms of this Contract.

Section 13 - Risk and Liability:

Section 13.3 Indemnification- Patent and Copyright-

Intellectual Property. As between the parties, Vendor will and does retain all proprietary and intellectual property rights, title and interest (Including, without limitation, all Intellectual Property Rights) in and to the Product. Client retains all ownership rights to Client Data and Client Content.

Service Provider shall also comply with the breach notification requirements under applicable law that arise from the result of Service Provider’s failure to meet any of its obligations under this contract.

Section 14 - Shipping/Delivery:

Section 14.1- Transfer of Title

Title and risk of loss shall not pass to the District until the District has verified access to the digital media content (online, digital download, or apps). In the event access cannot be obtained, the District will make every reasonable attempt to work with the vendor to resolve the issue prior to cancelling a purchase order.

Shipping Costs (Shipping Costs In or Outside of Price)

Shipping Terms/Transfer of Title: Shipments shall be F.O.B. destination. Title and risk of loss of product shall not transfer to District until District receives the product at the delivery point.

Shipping Charges: The price for a product offered by Contractor shall include shipping costs, prepaid unless the Offer clearly states that shipping costs are in addition to the price and provides sufficient information for District to determine shipping costs, whether as a specific dollar amount or as a percentage of the price. If shipping costs are not included in the price, the Contract shall specify shipping costs as a separate item in the Offer and invoices. Contractor shall not invoice District for shipping costs in excess of Contractor’s actual costs of shipping.

Shipping Errors/Risk of Transportation: Shipping errors will be at Contractor’s expense. If Contractor delivers a product that was not ordered, Contractor shall pay for return shipment at the convenience of District. All risk of transportation and all related charges shall be Contractor’s responsibility. Contractor shall file all claims for visible or concealed damage. District shall notify Contractor promptly of observed damage to products and shall assist Contractor in arranging for inspection.

Section 17 - Warranty/ Quality Guarantees:

Section 17.4 Compliance with Applicable Laws

Offeror agrees to comply with the requirements of The Family Educational Rights and Privacy Act (FERPA), the Pupil Protection Rights Act (PPRA), Child Online Privacy & Protection Act (COPPA), Health Insurance Portability and Accountability Act HIPAA, Section 508 ADA, General Data Protection Regulations (GDPR), California Consumer Privacy Act (CCPA) and any other federal and/or state law governing the privacy of CDI. Offeror specifically agrees to be bound by A.R.S. § 18-551. and -552, as amended, A.R.S. § 15-241, FERPA, PPRA and any other applicable Arizona or federal law governing CDI.

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