Master Services Agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT CAREFULLY BEFORE USING THE SERVICES AND/OR SOFTWARE OFFERED BY FOCALPOINTK12, INC, A DELAWARE CORPORATION (“FOCALPOINT”).

THIS MASTER SERVICES AGREEMENT GOVERNS THE CUSTOMER’S (AS DEFINED BELOW) ACCESS TO AND USE OF FOCALPOINT’S PRODUCT(S) AND SERVICES AND IS AN AGREEMENT BETWEEN CUSTOMER AND FOCALPOINT.

BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) EXECUTING A QUOTE THAT REFERENCES THIS AGREEMENT; (2) BY EXECUTING A COPY OF THIS AGREEMENT DIRECTLY; OR (3) ACCESSING THE FOCALPOINT(S), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY RELATED QUOTE(S). IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. THE TERM “CUSTOMER,” AS DEFINED BELOW, WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE FOCALPOINT PRODUCT(S).

1. DEFINITIONS

“Agreement” means this Master Services Agreement and all referenced exhibits.

“Customer” means the school, school district or other entity obtaining access through purchase to the FocalPoint Products or Services.

“Customer Data” means any data, including digital files and unstructured content objects, entered or submitted by Customer by means of the FocalPoint Product(s).

“Cloud Services” means the hosting of the FocalPoint Product(s) on a server farm that is comprised of application, data and remote access servers used to store and run the FocalPoint Product(s), as further detailed in Exhibit C (Cloud Services Policy).

“Documentation” means all electronic or printed user materials, made available to Customer by FocalPoint with respect to FocalPoint’s Product(s) or Services.

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how, other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Licensed Site(s)” means a unique School to whom FocalPoint Product(s) shall be provided under the Quote and terms of this agreement.

“Parties” means FocalPointK12, Inc. and the Customer of FocalPoint’s Product(s).

“Product(s)” means all software provided by FocalPoint pursuant to an executed Quote form and to this Agreement, now or in the future.

“Professional Services” means the services which may be further discussed and described through a Statement of Work or Quote, pursuant to Exhibit B (Professional Services Policy) of this Agreement.

“SaaS” means the acronym for the phrase “software as a service”.

“Services” means any combination of the following: a) Support Services, b) Subscription and/or c) Professional Services.

“Subscription” Access provided to FocalPoint Products and all related Documentation provided to Customer pursuant to Quote and the terms of this Agreement, now or in the future.

“Support Services” is defined in Exhibit A (Support Policy).

“State Reporting Module (or SRM)” means FocalPoint Product(s) that may be available to Customer to assist Customer in meeting specific state reporting requirements.

“Statement of Work” or “SOW” means any Professional Services project made between the Parties which references and incorporates the terms of this Agreement, and sets out the details of a particular project, including, without limitation, any applicable (i) methodologies; (ii) project responsibilities; or (iii) estimated or actual pricing.

“Quote” means FocalPoint standard quote form that (i) specifies the Product(s) and Services provided to Customer; (ii) references this Agreement; and (iii) is signed or incorporated to a signed agreement by authorized representatives of both Parties and deemed incorporated into the Agreement.

“Term” means the duration of the Agreement as described in section 11.1.

“User(s)” means individuals authorized by the Customer who access and utilize FocalPoint Product(s).

1. FOCALPOINT PRODUCT ACCESS

2.1 Product Access. Subject to this Agreement FocalPoint will (a) make the Product(s) available to Customer via FocalPoint’s Cloud Services for the contracted number of users; (b) provide applicable Support Services to Customer and Users, as described in Exhibit A (Support Policy); (c) use commercially reasonable efforts to make the Products available, except for: (i) planned downtime (of which FocalPoint will give advance electronic notice), and (ii) any force majeure event as described in Section 14.2.2 (Force Majeure), internet service provider failure or delay, Third Party Software, or denial of service attack.

2.2 Restrictions on Product Access. Customer will access and use FocalPoint’s Product(s) only for the business purposes of Customer. Any use of the Product(s) beyond this purpose is prohibited.

2.2.1 FocalPoint’s Product(s) may not be accessed by FocalPoint competitors, except with FocalPoint’s prior written consent.

2.2.2 Customer will ensure its Users will not, and itself will not (a) sell, resell, distribute, lease, license, sublicense, frame, mirror or copy the FocalPoint Product(s) or otherwise provide access to the FocalPoint Product(s) to any third party not expressly authorized by FocalPoint; (b) write or develop any derivative works based upon the FocalPoint Product(s) or Documentation; (c) interfere with or disrupt the integrity or performance of the FocalPoint Product(s) or third party data contained therein; (d) attempt to gain unauthorized access to the FocalPoint Product(s)or its related systems or networks; or (e) remove any proprietary notices or labels from the FocalPoint Product(s) or Documentation. Any attempted sublicense, assignment, or transfer of any rights, duties or obligations by Customer in violation of this Agreement will be void.

2.2.3 Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, FocalPoint’s Product(s), and notify FocalPoint promptly of any such unauthorized access or use. Customer will not transfer, assign, provide or otherwise make FocalPoint’s Product(s) or Services available to any other party without the prior written consent of FocalPoint. Customer will keep confidential and not disclose to any third parties, and will ensure that all authorized users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the FocalPoint Product(s).

1. PROPRIETARY RIGHTS

3.1 Intellectual Property Rights. FocalPoint alone owns all rights, titles and interests, including all related Intellectual Property Rights, in and to the FocalPoint Product(s) and Services. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the FocalPoint’s Product(s) and Services, or the Intellectual Property Rights owned by FocalPoint. All Intellectual Property Rights shall remain the property of FocalPoint.

3.2 Trademarks. The FocalPoint name, the logo, product names associated with FocalPoint’s Product(s) and any other marks, logos, designs, sound, trade dress, etc. are trademarks of FocalPoint, and no right or license is granted by this Agreement to their use.

3.3 Customer Feedback. FocalPoint shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the FocalPoint’s Product(s) any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its employees, contractors and agents relating to the operation or functionality of the FocalPoint’s Product(s) (collectively, “Feedback”). FocalPoint shall have no obligation to incorporate Feedback into the FocalPoint’s Product(s). Customer shall have no obligation to provide Feedback.

3.4 Ownership of Customer Data. Customer shall own all right, title and interest in and to the Customer Data.

1. CUSTOMER DATA

4.1 Responsibility for Content of Customer Data. Customer will have sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy or Intellectual Property Rights, includes malicious code, or that will interfere with the integrity the FocalPoint’s Product(s).

4.2 License to Customer Data. Customer grants to FocalPoint a royalty-free, non-transferable, non-exclusive license for the term of this Agreement to use Customer Data to the extent necessary to deliver and perform the FocalPoint’s Product(s). Notwithstanding anything to the contrary, FocalPoint shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the FocalPoint’s Product(s) and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and FocalPoint will be free (during and after the term hereof) to (i) analyze and use such information and data to improve and enhance the FocalPoint’s Product(s) and for other development, diagnostic and corrective purposes in connection with the FocalPoint’s Product(s) (examples of such uses include optimizing resources and support, research and development, verification of security and data integrity, internal demand planning, industry developments and anonymous benchmarking with other customers), and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.3 Public Record Act. Notwithstanding anything herein to the contrary in section 3.3, FocalPoint acknowledges that, to the extent Customer is subject to public record acts or freedom of information acts, FocalPoint will work with Customer to provide appropriate information in response to such requests.

4.4 Customer Data Security and Privacy. FocalPoint will abide by its policy, as set forth in Exhibit D (Data Privacy Policy) with respect to the security and privacy of its Customer’s data.

1. CONFIDENTIALITY.

5.1 Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; FocalPoint’s Confidential Information includes the Product(s) and information regarding features, functionality and performance of the Product(s); and Confidential Information of each party includes the terms and conditions of this Agreement and all Quotes (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2 Obligation to Protect Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 5.

5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

1. SUPPORT AND OTHER SERVICES. FocalPoint will provide the Support Services set forth in Exhibit A (Support Policy) and Professional Services mutually agreed upon via a Quote or Statement of Work pursuant to Exhibit B (Professional Services Policy).
2. FEES AND TAXES.

6.1 Payment of Invoices and Taxes. Customer agrees to pay FocalPoint, in accordance with FocalPoint’s invoice terms, the fees charged for FocalPoint’s Product(s) and related Services, along with any other charges made in accordance with this Agreement, and all applicable sales, use or other taxes or duties with respect to the Product(s) (except for taxes on FocalPoint’s net income). Any invoice disputes must be initiated by Customer in good faith and in writing by the due date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer. All undisputed amounts charged on such invoice will continue to be due and payable. FocalPoint and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after FocalPoint’s receipt of Customer’s notice to FocalPoint regarding such dispute. Customer will pay a monthly charge of 1.5% (18% annually) on all amounts not paid when due, or, if a lower maximum rate is established by law, then such lower maximum rate.

6.2 Price Increases. FocalPoint’s Product fees are subject to an annual price uplift at start date of each annual period. Each annual subscription period’s fees will be invoiced at the current rates.

6.3 Enrollment Based Pricing. FocalPoint’s per student Product pricing is based on the number of students enrolled at the Licensed Sites in the current annual term of the subscription. If, during the then current annual subscription term, Customer accesses FocalPoint’s Product(s) with more than the number of students authorized in the Quote, FocalPoint may submit an amended invoice for the amount of such excess usage. Any such increase in student enrollment will be maintained through the end of the then-current annual term. Such additional fees will be computed by multiplying the then-current Product subscription fees by Customer’s additional student enrollment.

6.4 Annual Enrollment Review. Customer’s student enrollment shall be reviewed by FocalPoint within 60 days of the start of each and new annual subscription period and the annual fees for that period shall be calculated by multiplying the then-current Product subscription fees by Customer’s student enrollment count.

6.5Licensed Site Based Pricing. FocalPoint’s per school Product pricing is based on the Customer’s number of Licensed Sites. Customer usage of the Product(s) will be limited to Licensed Sites, additional Licensed Sites may be added through an addendum Quote, add-on pricing shall be based on then-current Product subscription fees times the number of additional Licensed Sites.

6.6Rest API Pricing. FocalPoint’s REST API pricing covers up to 350,000 queries, or calls, to the REST APIs per month.  Additional REST API calls made through Customer’s interface to the REST API shall be charged at a rate of one dollar (USD $1.00) per thousand (1,000) calls per month.

1. THIRD PARTY SOFTWARE LICENSE TERMS. If applicable, Customer may require use of certain third-party software in connection with the Product(s). Any third party software is licensed directly to the Customer pursuant to separate license terms between Customer and the third-party supplier and all support, warranties, and services related to such third party software are provided by the supplier of the third-party software under such third party’s terms and conditions and Customer acknowledges that FocalPoint will have no responsibility for the implementation or operation of such third party software.
2. SOFTWARE COMPATIBILITY. FocalPoint Product compatibility may be limited to certain operating systems, hardware, browsers. FocalPoint will make written software compatibility requirements available to Customer at Customer’s request.
3. WARRANTY AND DISCLAIMER.

9.1 Product Warranty. FocalPoint warrants that the Product(s) will conform in all material respects to the Documentation. As Customer’s sole remedy for any breach of this warranty, if Customer brings to FocalPoint’s notice any incidence of non-conformance, FocalPoint will use reasonable efforts to correct the error.

9.2 State Reporting Module (SRM). Customer acknowledges that FocalPoint’s State Reporting Module (SRM) is intended to assist Customer in complying with state regulatory requirements; however, FocalPoint does not warrant or guarantee that SRM conforms to, or that use of the SRM will ensure Licensee’s compliance with, all state or provincial regulatory requirements that may apply or that the SRM will be maintained to conform to such requirements now or in the future.

9.3. Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT(S) AND THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND FOCALPOINT DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE, OR ANY WARRANTY OF SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE PRODUCT(S) OR THE SERVICES WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS. FOCALPOINT MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR RELATED SERVICES PROVIDED IN CONNECTION WITH THE PRODUCT(S). FOCALPOINT’ LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN FOCALPOINT OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE. The parties agree that it is Customer’s responsibility to determine if the Product(s) is suitable for Customer’s requirements.

1. LIMITATION OF LIABILITY. FOCALPOINT WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR LOST PROFITS, LOST FUNDING, LOST SAVINGS, OR LOST OR DAMAGED DATA; OR FOR CLAIMS OF A THIRD PARTY; ARISING OUT OF THIS AGREEMENT, OR PRODUCTS, SERVICES OR SUPPORT PROVIDED HEREIN, OR THE USE OR INABILITY TO USE ANY OF THE FOREGOING, IN EACH CASE, EVEN IF FOCALPOINT IS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. FOCALPOINT’ ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCT(S) OR SERVICES WILL BE LIMITED TO DIRECT DAMAGES IN A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO FOCALPOINT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOCALPOINT WILL ALSO NOT BE RESPONSIBLE FOR ANY FAILURE TO PERFORM DUE TO ANY EVENTS BEYOND FOCALPOINT’S CONTROL (INCLUDING FAILURES OF THE INTERNET).
2. INDEMNIFICATION

11.1 Indemnification by FocalPoint. FocalPoint herby agrees to defend, indemnify, and hold harmless the Customer from and against any and all costs, expenses and damages arising out of or relating to any claim by a third party alleging that the Product(s) infringes any Intellectual Property Rights in the United States or Canada, provided that FocalPoint will have received from Customer (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all reasonable necessary cooperation of Customer. If following notice of such a claim, FocalPoint cannot settle it on reasonable terms, FocalPoint may terminate this Agreement with the sole obligation to refund to Customer any prepaid fees for any future period during which Customer will not be entitled to access the Product(s). The foregoing obligation of FocalPoint does not apply to the extent the claim arises from (i) modifications to the FocalPoint’s Product by anyone other than FocalPoint or (ii) any unauthorized use, access or distribution of the FocalPoint Product. THE FOREGOING STATES FOCALPOINT’ SOLE AND EXCLUSIVE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

11.2 Indemnification by Customer. To the extent permitted under applicable law, Customer agrees to indemnify and hold FocalPoint harmless against and from all costs (including reasonable legal fees), expenses and damages made by any third party against FocalPoint arising from of: (a) Customer’s breach of the access and use restrictions set forth in Section 2; (b) FocalPoint hosting Customer Data; or (c) unauthorized changes to, or use of the Product(s) by, Customer.

1. TERM AND TERMINATION

12.1 Term. This Agreement commences on the date Customer first executes it and/or FocalPoint Quote form and continues until the term of all Product(s) or Services provided under any applicable Quote have expired (Quote End Date) or been terminated.

12.2 Suspension. FocalPoint will have the right to suspend delivery of its Product and Services offered under this Agreement in the event that Customer is notified that it is in breach of any of its obligations under this Agreement and fails to cure the breach within fifteen (15) days of the notice.

12.3 Termination for Breach. Either party will have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period.

12.4 Termination of Annual Renewal. Either party may terminate this Agreement in whole or in part by providing the other party with written notice of non-renewal at least sixty (60) days prior to the end of each annual subscription period.

12.5 Termination for School Closure. The Customer may terminate this agreement if the Customer closes Licensed Sites utilizing FocalPoint Products. Customer will be obligated to pay all charges incurred through the end of the last month for which Licensed Sites remained open. Customer will provide FocalPoint with at least thirty (30) days written notice of such termination.

12.6 Effects of Termination. In the event of any termination of all or any portion of this Agreement, Customer will not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. In addition, the provisions of Sections 3 (Proprietary Rights), 5 (Confidentiality), 6 (Fees and Taxes), 10 (Limitation of Liability), 11 (Indemnification), 12.5 (Effects of Termination), 12.6 (Liquidated Damages), 12.7 (Data Portability and Deletion) and 13 (General) will survive termination of this Agreement.

12.7 Liquidated Damages. In the event that Customer enters into a multi-year Quote with FocalPoint and Customer terminates the contract or any portion thereof, Customer agrees to pay FocalPoint the remaining sum due to FocalPoint through the stated term in the applicable Quote as liquidated damages. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. Customer acknowledges that the actual damages likely to result from a breach of the multi-year Quote term by Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. This clause will not apply in the event Customer terminates this Agreement as (a) a result of FocalPoint’s breach in accordance with Subsection 12.3 hereof, or (b) as a result of other termination by the customer in accordance with section 12.4 hereof.

12.8. Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, FocalPoint will make the Customer Data available to Customer for export or download. After such thirty (30) day period, Customer acknowledges that FocalPoint will have no obligation to maintain or provide Customer Data.

1. GENERAL

13.1 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA. THE VENUE FOR ANY LEGAL ACTION, LITIGATION, SPECIAL PROCEEDING OR OTHER PROCEEDING BETWEEN THE PARTIES THAT MAY BE BROUGHT, OR ARISE OUT OF, IN CONNECTION WITH, OR BY REASON OF THIS AGREEMENT SHALL BE IN THE STATE OF GEORGIA. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS.  The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.

13.2 Dispute Resolution. Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period, the parties will submit the dispute to binding arbitration in accordance with Commercial Arbitration Rules of the American Arbitration Association (the “Rules”), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. All arbitration proceedings shall be held in Atlanta, Georgia and the arbitrator, who shall be experienced in technology transactions, shall be appointed in accordance with the Rules. Notwithstanding, each party shall be entitled to seek injunctive relief.

13.3Amendment. This Agreement may only be amended or modified by a writing specifically referencing the particular Section(s) of this Agreement to be modified and signed by authorized representatives of the Parties.

13.4Force Majeure. FocalPoint will not be deemed in default of this Agreement for delays or failure in performance resulting from acts beyond its reasonable control, including but not limited to, default by subcontractors or suppliers, failure of Customer to provide promptly to FocalPoint accurate information and materials, as applicable, acts of God or of a public enemy, acts of terrorism, United States or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, power outages, road icing or inclement conditions, flood, epidemic, restrictions, strikes, and/or freight embargoes.

13.5Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, that provision must be severed or reformed to be enforceable, and the remaining provisions hereof and thereof will remain in full force. No delay or omission by FocalPoint in the exercise or enforcement of any of its powers or rights hereunder will constitute a waiver of such power or right.

13.6Notices. All notices under this Agreement must be in writing return receipt requested, with a copy by email. In the case of notices to FocalPoint, such notices must be sent to:

FOCALPOINTK12, INC. Attn: Comptroller, 3295 River Exchange Drive, Suite 372, Peachtree Corners, GA 30092

In the case of notices to Customer, such notices will be sent to FocalPoint’s address of record for Customer. Either party may change its notice address by notifying the other in like manner.

13.7Assignment. Neither party may assign this Agreement or any interest herein, without the prior written consent of the other; provided, however, that FocalPoint may assign its rights and obligations under this Agreement without the consent of the Customer in the event FocalPoint hereafter effects a corporate reorganization, consolidates with, or merges into, any person or transfers all or substantially all of its properties or assets to any entity. This Agreement will inure to the benefit of and be binding upon the Parties, their respective successors, executors, administrators, heirs and permitted assignees.

13.8Entire Agreement. This Agreement and/or exhibits referenced herein, and any addendums and amendments, constitute the complete and entire agreement between the Parties with respect to its subject matter, and supersedes all prior discussions, understandings, arrangements, proposals and negotiations with respect to same. By mutual agreement of the Parties, this Agreement is effective upon execution of a Quote and supersedes all prior Agreements entered into by the Parties, the Parties’ agents, and/or the Parties’ previous affiliates. This Agreement may not be modified or amended without the written agreement of both Parties that specifies the particular Section(s) being modified. The order of precedence is the executed Quote, then this Agreement.

EXHIBIT A: SUPPORT POLICY

This Exhibit A sets forth the additional policy and party expectations supporting FocalPoint’s provision of Customer Support to the Customer in connection with the Product(s) provided pursuant to this Agreement.

Definitions. Capitalized terms not defined herein have the meanings assigned to them in the Agreement between Customer and FocalPoint to which Exhibits are attached. In addition, for purposes of these Exhibits, the following definitions will apply:

1.1 “Errors” means a reproducible failure of Product to operate in accordance with its standard Documentation, despite the proper installation and use of the Product(s) in a proper operating environment and on hardware and system software sufficient to meet FocalPoint’s then-current requirements. Errors may be due to problems in Product(s), the Documentation, or both.

1.2 “Fix” means a patch, service pack or corrective update of the Product(s) that FocalPoint may prepare in its discretion on an interim basis, prior to issuance of a New Version, to correct programming Errors that prevent or obstruct normal operation of the Product(s).

1.3 “New Version” mean an updated version of Licensed Product issued by FocalPoint, which may include Fixes, together with such other modifications, updates, enhancements and improvements to Licensed Product that FocalPoint may, in its discretion, develop and deem ready for to all customers with a current Product Subscription.

1.4 “Support Services” means those support services described in Section 2.1 below that will be provided hereunder with respect to Products during the Quote term.

1.5 “Telephone and E-mail Support” means telephone and e-mail support services, available Monday through Friday, during FocalPoint’s normal business hours, exclusive of FocalPoint’s holidays, regarding FocalPoint’s Product(s).

1. CUSTOMER SUPPORT.

2.1 Support Services Scope. FocalPoint, or an entity under contract with and authorized by FocalPoint to provide Support Services, will provide Support Services for Product(s) during the Quote Term. The scope of Support Services will be as follows:

2.2 Support. Support Services include: (a) Telephone and E-mail Support; (b) Fixes, as developed and made generally available by FocalPoint in its discretion to address Errors that Customer is experiencing in using Product; and (c) New Versions, as developed and made generally available by FocalPoint. FocalPoint determines, in its sole discretion, what improvements and enhancements to existing functionality of a Product or are to be included in a New Version (and are therefore provided at no charge to customers with a current subscription).

2.3 Custom Programs. For any custom programs developed for Licensee/Customer by FocalPoint, Support Services are available on a time and materials basis at FocalPoint’s current rates and charges for these services; support for custom programs is not included in Support Services. In addition, to the extent that the Product(s) include functionality that allows the user to customize screens or reports, FocalPoint will not be responsible for supporting any such customizations.

2.4 Out of Scope Items. Support is intended to address specific problems experienced by Customer relating to the Product(s), and is not intended to train Customer’s employees or to support third party products (“Other Assistance”). FocalPoint will advise Customer during a support session if FocalPoint considers such request to constitute Other Assistance. Following such notice, if Customer wishes for the support session to continue, Customer will pay for such Other Assistance based on FocalPoint’ then-current rates. Should the problem reported by Customer to FocalPoint be the result of hardware malfunction or other causes external to the Subscription Services, FocalPoint will advise Customer to have the hardware/network repaired. Support resulting from hardware/network problems and/or issues associated with third party products or services will be billed to Customer at FocalPoint’ then-current hourly rates.

EXHIBIT B: PROFESSIONAL SERVICES POLICY

This Exhibit B sets forth the additional policy and party expectations supporting FocalPoint’s provision of Professional Services to the Customer in connection with the Product(s) provided pursuant to this Agreement.

1. PROFESSIONAL SERVICES.

1.1 Initial Professional Services. FocalPoint shall provide a description and cost of Initial Professional Services including onboarding (implementation), data loads, and training in the FocalPoint Quote form. Additional descriptions, timelines and workplans for Initial Professional Services shall be provided to the Customer by FocalPoint upon Customer request.

1.2 Additional Professional Services, Custom Development and Statements of Work. Customer may request additional professional services and/or custom development work of FocalPoint. FocalPoint will evaluate such requests and provide the customer with a Quote and/or statement of work (“SOW”) setting forth the agreed upon scope of the professional services, estimated or actual pricing, payment terms and, if applicable, project schedule, and estimated delivery dates. Both Parties will execute each Quote and/or SOW and FocalPoint will carry out the additional professional services and/or custom development work on the agreed-upon schedule.

1.3 Delivery and Cooperation. Customer acknowledges that Customer’s cooperation is essential to the timely performance of professional services. Customer will, to the extent required in connection with the performance of FocalPoint’s professional services: (i) provide FocalPoint with any necessary materials; (ii) provide FocalPoint with any required access to Customer’s personnel, facilities or data as required for delivery of additional professional services. Customer’s delay or failure to do so may delay the estimated delivery schedules, in which case, both Parties will cooperate in good faith to develop a revised written delivery schedule. Unless otherwise expressly agreed in a Statement of Work, all Professional Services will be deemed accepted upon delivery.

1. Changes to Project Scope. Customer may request changes to the scope of a professional services Quote or SOW. Changes to the scope of a statement of work will result in a change order to such statement of work or a new statement of work. Any scope changes will be made pursuant to the terms set forth in a Statement of Work, to be mutually agreed upon by the Parties.
2. 3. Implementation andData Loads. Implementation of FocalPoint’s Products requires proper data loads in specific formats. FocalPoint will inform the Customer of the data load and file layouts required to support the data. If the Customer is unable to provide the data as required, FocalPoint may offer services to complete the data load at an additional charge. Successful implementation is the shared obligation of both Parties.
3. On-Site Services. For Services provided on-site at Customer’s site or another Customer designated location, Customer will also be responsible for including travel, meals, accommodation and related expenses incurred by FocalPoint’ employees or agents. 

EXHIBIT C: CLOUD SERVICES POLICY

1. Access and Term. Access to FocalPoint’s Product(s) is be provided to customer through FocalPoint Cloud Services. Access will begin as of the start date listed on the signed Quote and terminate at the end date listed on the signed Quote, unless terminated earlier in accordance with the terms of these Policies or the Agreement.
2. Availability. Customer acknowledges that the Cloud Service may be inaccessible or inoperable from time to time due to planned maintenance or to causes that are beyond the control of FocalPoint or are not reasonably foreseeable by FocalPoint, including, but not limited to: a force majeure event as defined in the Agreement, the interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion; or other failures (collectively “Downtime”). FocalPoint will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Subscription Service caused by Downtime, whether scheduled or not.
3. Acceptable Use Policy. Customer acknowledges that FocalPoint does not monitor or police the content of communications or Customer data or its users’ activities transmitted through the Cloud Services, and that FocalPoint will not be responsible for the content of any such communications or transmissions. Customer must use the Cloud Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations and FocalPoint’s policies.
4. Data. Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of the data it processes through and submit to the Cloud Services. 

EXHIBIT D: DATA PRIVACY POLICY

1. OWNERSHIP OF MATERIALS; CONFIDENTIALITY; COMPLIANCE.

1.1 Customer Materials. All Customer data and records uploaded or transmitted to FocalPoint under this Agreement (collectively, “Customer Materials”) shall continue to be the property of Customer. FocalPoint will maintain all such Customer Materials in strict confidence and will not disclose any such Customer Materials, unless pursuant to this Agreement or with express written consent of the Customer.

1.2 FocalPoint acknowledges that Customer retains full right and ownership to all of their user-generated content (such content not encompassing any modifications to FocalPoint’s Pre-existing Intellectual Property), unless such rights are specifically granted to FocalPoint in a writing signed by Customer and the User or, if the User is a minor child, by the child’s parent/guardian. FocalPoint agrees not to edit, make available, distribute or otherwise disclose any information or content, including any Customer Materials, generated or obtained from Customer or Users unless: (1) such activity is integral to and clearly contemplated by the particular nature of the Services or otherwise permitted pursuant to this Agreement, or (2) written permission is first procured from the Customer.

1.3 The Parties acknowledge that (i) Customer Materials may include personally identifiable information from education records that are subject to the Family Educational Rights and Privacy Act, as amended (“FERPA Records”); and (ii) to the extent that Customer Materials includes FERPA Records, FocalPoint will comply with the requirements and obligations of FERPA. Each party represents and warrants to the other party that it will comply with all provisions of FERPA applicable to such party’s performance hereunder.

1.4 The Parties also acknowledge that Customer Materials may include personally identifiable information from children under the age of 13, subject to the Children’s Online Privacy Protection Act and related regulations (“COPPA”). Pursuant to COPPA and the Student Online Personal Information Protection Act, California SB 1177 (SOPIPA). FocalPoint shall only have access to any such information for the purpose of fulfilling this Agreement. FocalPoint agrees to maintain the strict confidentiality of such data, except insofar as disclosure is required by a law enforcement agency as authorized by law or pursuant to an order of a court of competent jurisdiction.  FocalPoint further agrees not to use such to (1) to engage in targeted marketing or advertising; (2) sell student data or records.

1.5 FocalPoint will safeguard and keep confidential personal or sensitive information obtained from a Customer User, including, but not limited to, personally identifying information such as the name, email address or screen name of the Customer User.

1.6 The terms herein will not be construed as prohibiting either party hereto from disclosing information to the extent required by law, regulation, or court order, provided such party notifies the other party promptly after becoming aware of such obligations and permits the other party to seek a protective order or otherwise to challenge or limit such required disclosure.

1. Disposition of Data.

2.1 Upon written request and in accordance with the applicable terms in Sections 2.2 or 2.3, below, FocalPoint will dispose or delete all or parts of Customer Materials. Nothing in this Agreement authorizes FocalPoint to maintain Customer Materials beyond the time period reasonably needed to complete the disposition. Upon request by Customer, FocalPoint will provide written notification to Customer when all Customer Materials have been disposed.

2.2 Upon termination of this Agreement, FocalPoint will dispose of or delete all Customer Materials within a commercially reasonable time period following termination.