Master Contract Supplement
BY ACCEPTING A SERVICE ORDER OR OTHER AGREEMENT THAT INCORPORATES THIS SERVICES AGREEMENT (THE “SA”) (THE “ORDERING DOCUMENT”), LEA (AS DEFINED IN THE MASTER CONTRACT) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS SA. THE ORDERING DOCUMENT AND MASTER CONTRACT TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” THE TERMS OF THE ORDERING DOCUMENT SHALL CONTROL OVER ANY CONFLICTING TERMS IN THE MASTER CONTRACT.
LEA and PresenceLearning, Inc., a Delaware corporation with an office and place of business located at 180 Montgomery Street, Suite 1850, San Francisco, California 94104 (“PresenceLearning” or “CONTRACTOR”) (collectively, “Parties”) hereby agree that the following terms and conditions are incorporated by reference into the Master Contract, and shall apply notwithstanding any provision to the contrary in the remainder of the Master Contract.
LEA shall access and use PRESENCELEARNING TECHNOLOGY, which enables qualified individuals, including but not limited to speech-language pathologists, occupational therapists, psychologists, social workers and counselors (each, a “CLINICIAN”) to provide related services to LEA students with identified or suspected needs. “PRESENCELEARNING TECHNOLOGY” consists of software, websites, networks, and equipment made available or used by CONTRACTOR pursuant to this AGREEMENT to facilitate LEA’s access to and/or use of SERVICES. SERVICES are specified in the ORDERING DOCUMENT, and may include but are not limited to the following:
(a) Clinical and therapy services, consultation, participation in individualized education planning and other meetings, collaboration with school staff, documentation and planning, parent contact, and service coordination
(b) Assessments, e.g., pre- and post-assessments and intervention services; initial and triennial assessments; psychoeducational assessment (PA) services; screenings. Assessments include a base rate encompassing a Review of Records, writing an integrated report, attending the pre-assessment and results meetings, and testing set up. Additional assessments will be administrated where outlined in the Student’s assessment plan.
(c) Review of Records / Parent & Teacher Interviews, e.g., a cumulative file review for a student, including medical, educational, and social development histories, plus current parent and teacher interviews.
(d) Supervision of Speech-Language Pathology Assistants (SLPA), Certified Occupational Therapy Assistants (COTA), and Clinical Fellows (CF)
(e) Setup, including equipment and provision of a camera for use with PA and other services if ordered
2 Individual Services Agreement
Upon CONTRACTOR’s acceptance of a pupil as referred by the LEA, LEA shall submit to CONTRACTOR an Individual Services Agreement (ISA). LEA may execute an ISA or amend an existing ISA for a student when a recommendation for special education and/or related services is based in whole or in part on assessment(s) or reports provided by CONTRACTOR.
3 Additional Students and Services
ORDERING DOCUMENT may specify a number of “Contracted Students,” which is the number of students for whom LEA has purchased SERVICES as of the date of ORDERING DOCUMENT. LEA and CONTRACTOR agree that, upon request by any authorized representative of LEA (“LEA AUTHORIZED INDIVIDUAL”) to serve more students than the number of Contracted Students or to provide additional SERVICES, the terms of ORDERING DOCUMENT will apply, without the need for the Parties to enter into an additional ORDERING DOCUMENT. A request may be made orally, in writing, or by providing CONTRACTOR with a student’s Individual Education Plan (“IEP”) and/or ISA. Regardless of the manner in which the request is made, LEA shall submit to CONTRACTOR the student’s IEP and ISA.
4.1 Fees and Payment. The Rate(s) set forth in the Master Contract shall apply to this AGREEMENT, and shall not bind CONTRACTOR with regard to any other Master Contract or AGREEMENT with LEA or any other local educational agency, whether or not such local educational agency is a member of the same SELPA as LEA. LEA agrees to pay CONTRACTOR the applicable Rate for the duration of time spent providing SERVICES, including associated indirect services, specified in the LEA students’ IEPs and ISAs. CONTRACTOR may charge LEA for the provision of progress reports, report cards, assessments or interviews.
4.2 Setup Fees. Setup fees set forth in the ORDERING DOCUMENT will be billed in the first invoice of the Term set forth in the ORDERING DOCUMENT (“INITIAL TERM”) and any renewal term provided in Section 15 of this Supplement (“RENEWAL TERM”) (each hereinafter referred to as a “TERM”) on a per student, per SERVICE basis for the number of “Contracted Students” corresponding to a particular SERVICE. If the number of students receiving a SERVICE exceeds the number of Contracted Students corresponding to that SERVICE, Setup fees will be billed on a monthly basis for the number of students in excess of the greater of (i) the number of Contracted Students or (b) the number of students for whom Setup fees have already been paid during the TERM.
4.3 Monthly Commitment. “Monthly Commitment” shall mean the minimum dollar payment due each month of the TERM, excepting (i) any month prior to the beginning of SERVICES, (ii) the month in which SERVICES begin, and (iii) the month of June (“MONTHLY COMMITMENT MONTH”). For each MONTHLY COMMITMENT MONTH, LEA shall pay the greater of (i) the total fees incurred in each month or (ii) the Monthly Commitment amount. These amounts will be billed quarterly for the MONTHLY COMMITMENT MONTHS following the end of the prior calendar quarter, e.g., January, February and March Monthly Commitments will be billed following March 31.
4.4 Unplanned Student Absence. If LEA cancels a session with less than 24 hours advance notice or the session does not occur due to a student absence, which may be referred to as an “Unplanned Student Absence,” LEA agrees to pay CONTRACTOR the applicable Rate for the duration of the scheduled session. If LEA has agreed to be billed for a minimum number of hours in a period, e.g., one week, the duration of the session shall be applied toward such minimum for the period in which the session was scheduled to occur.
ORDERING DOCUMENT may set forth an “Assessments Commitment,” which shall be the minimum value of assessments for which payment is due at the end of the TERM. If LEA does not purchase the Assessments Commitment during the TERM, at the end of the TERM, LEA shall pay an amount equal to the rate applicable to the type of assessment multiplied by the number of additional assessments that would have had to be purchased so that the total number of assessments equals the Assessments Commitment. Further, the ORDERING DOCUMENT may set forth a “Psychoeducational Assessments Commitment,” which shall mean the minimum value of psychoeducational assessments for which payment is due at the end of the TERM. If LEA does not purchase the Psychoeducational Assessments Commitment during the TERM, at the end of the TERM, LEA shall pay an amount equal to the applicable Rate multiplied by the number of additional assessments that would have had to be purchased so that the total number of assessments equals the Psychoeducational Assessments Commitment.
If LEA requires CONTRACTOR to attend any meeting, including an IEP meeting or a meeting when legal mandates and/or LEA policies and procedures are reviewed, CONTRACTOR may attend by phone, video conference or in-person, at CONTRACTOR’s sole discretion. LEA shall be responsible for paying the applicable Rate for the duration of such attendance.
7 Withholding Payment or Seeking Repayment
LEA may withhold payment to or seek repayment from CONTRACTOR only when: (a) CONTRACTOR was overpaid by LEA as determined by mutual inspection, review, and/or audit of its program, work, and/or records; (b) CONTRACTOR has failed to provide supporting documentation with an invoice as requested by LEA; (c) education and/or related services are provided to LEA pupils by personnel who are not appropriately credentialed, licensed, or otherwise qualified; or (d) CONTRACTOR receives payment from Medi-Cal or from any other agency or funding source for a service provided to a LEA pupil. The only amounts which LEA may withhold or seek repayment of with respect to each of (a) through (d) above are as follows: (i) the value of the service CONTRACTOR failed to perform; (ii) the amount of overpayment; (iii) the entire amount of the invoice for which satisfactory documentation has not been provided by CONTRACTOR as mutually agreed by LEA and CONTRACTOR; (iv) the amount invoiced for services provided by the individual not appropriately credentialed, licensed, or otherwise qualified; and (v) the amount paid to CONTRACTOR by Medi-Cal or another agency or funding source for the service provided to the LEA student.
CONTRACTOR will notify LEA if there is a lapse in coverage such that any of CONTRACTOR’s required insurance policies no longer satisfies the requirements of the Master Contract. Certificates of insurance held by CONTRACTOR in compliance with the Master Contract need not include a provision by which LEA receives notice of suspension, voiding, cancellation, non-renewal, or reduction in coverage or limits. For insurance claims related to the SERVICES, CONTRACTOR must provide written consent in order for (i) CONTRACTOR’s insurance coverage to be primary insurance as respects the LEA, its subsidiaries, officials and employees, or (ii) to waive its right to seek contribution with regard to any insurance or self-insurance maintained by the LEA, its subsidiaries, officials and employees. LEA may authorize CONTRACTOR to begin work upon representation by the CONTRACTOR that it has the required insurance coverage even if the LEA has yet not received or approved certificates of insurance or completed endorsements.
9 Change in Residence
CONTRACTOR must notify LEA of a pupil’s change in residence or withdrawal from school and/or services only if CONTRACTOR has actual knowledge of the change or withdrawal. CONTRACTOR may provide the notification in a manner of its choosing, provided that it does so within five (5) school days after CONTRACTOR becomes aware of the change in residence or withdrawal. CONTRACTOR need not notify parents of any obligation to notify CONTRACTOR of a LEA pupil’s change of residence.
At LEA’s request, CONTRACTOR shall submit to LEA a list of, and copies of all current licenses, credentials, certifications, permits and/or other documents which entitle the holder to provide special education and/or related services by individuals employed, contracted, and/or otherwise hired or sub-contracted by CONTRACTOR who will be providing services to LEA pupils pursuant to this Master Contract. LEA shall be responsible for the storage of any such materials provided to LEA by CONTRACTOR.
CONTRACTOR shall submit invoices and related documents to LEA for payment, for each calendar month when SERVICES were provided unless MASTER CONTRACT provides for LEA to make one payment of TOTAL FEES or otherwise mutually agreed upon. Invoices and related documents shall be properly submitted electronically unless another method of delivery is mutually agreed upon. Each invoice must contain the month and day on which services were provided; name of staff who provided the service; total for each service and total for the invoice; representation by NPA authorizing that the information is accurate and consistent with the ISA, CDE certificates and staff notification; and name or initials of each student to whom each instance of direct service was provided.
11 Licensure, Certification, Training and Subcontracting
CONTRACTOR shall not be responsible for itself providing or enabling any required licenses, credentials, certifications, permits, or training to CLINICIANS where such individuals obtain or receive from another source, or where LEA is legally obligated to provide, such licenses, credentials, certifications, permits, or training. LEA understands and approves that CONTRACTOR will subcontract with CLINICIANS. Upon request, CONTRACTOR will provide to LEA evidence of any required licenses, credentials, certifications, permits, or criminal background check clearance held by CLINICIANS. CLINICIANS may be required to maintain Professional Liability insurance but need not maintain Commercial General Liability or Automobile Liability coverage.
12 PresenceLearning Materials
CONTRACTOR will own all rights, title, and interest, including patent rights, copyrights, trade secret rights, and all other intellectual property rights of any nature relating to the products, materials, SERVICES, designs, know-how, data, software, graphic art, and similar works authored, created, contributed to, made, conceived or reduced to practice, in whole or part, by CONTRACTOR or its agents or affiliates, which arise out of the performance of SERVICES. LEA agrees to maintain (and not supplement, remove, or modify) all copyright, trademark, or other proprietary notices on any materials utilized in providing the SERVICES. Provided LEA is not in breach of any term of this Agreement, CONTRACTOR grants LEA a non-exclusive, limited license, which license shall terminate upon expiration or termination of this Agreement, to reproduce and distribute the materials for which CONTRACTOR has the right to so grant solely to assist in the provision of SERVICES in accordance with the terms herein.
13 Limitation of Liability
In no event will CONTRACTOR be liable for any incidental damages, consequential damages, or any lost profits arising from or relating to the Master Contract or to the services provided, whether in contract or tort or otherwise, even if CONTRACTOR knew or should have known of the possibility of such damages. CONTRACTOR’s cumulative liability relating to the Master Contract will not exceed the actual fees paid by LEA to CONTRACTOR during the school year for three (3) months immediately preceding the date on which a claim is made; provided that such amount shall under no circumstances exceed $10,000. LEA acknowledges that this limitation reflects an adequate and acceptable allocation of risk and that in the absence of the foregoing limitations CONTRACTOR would not enter into the Master Contract.
LEA shall not, during the term of the Master Contract and for one (1) year thereafter, directly or indirectly solicit, induce, or attempt to induce any CONTRACTOR employee or contractor without CONTRACTOR’s prior written consent. Customer should contact its account manager with any inquiries concerning the aforementioned. If LEA causes any employee or contractor of CONTRACTOR to terminate or curtail that individual’s relationship with CONTRACTOR, and such termination or curtailment results in a loss of business or revenue for CONTRACTOR, LEA shall pay a solicitation fee of $30,000 (“SOLICITATION LIQUIDATED DAMAGES AMOUNT”) by way of liquidated damages. LEA acknowledges that the actual damages likely to result from breach of this Section are difficult to estimate on the Effective Date hereof and would be difficult for CONTRACTOR to prove. The parties intend that LEA’s payment of the SOLICITATION LIQUIDATED DAMAGES AMOUNT would serve to compensate CONTRACTOR for LEA’s breach of its obligations under this Section, and they do not intend for it to serve as punishment or penalty for any such breach by LEA.
This Master Contract shall automatically renew on an annual basis, unless either party gives written notice of its intention not to renew forty-five (45) days before expiration of a TERM. LEA agrees that for each successive year after the first school year of SERVICES, all Fees will rise each year at the most recent annual rate of inflation, rounded up to the nearest dollar as defined at the following U.S. Government URL, or its successor: https://data.bls.gov/timeseries/CUUR0000SAM?output_view=pct_12mths.
Upon the expiration or termination of the Master Contract for any reason, all amounts owed to CONTRACTOR under this Master Contract, which accrued before such termination, or expiration will be immediately due and payable. In addition to the post-termination obligations in this Section 16, Sections 12 through 14 and 17 through 25 will survive any expiration or termination of this Agreement. For the avoidance of doubt, early termination of the Master Contract by LEA prior to the expiration of its then-current term shall be considered a breach of the Master Contract and LEA shall pay a cancellation fee of $750 per Student, multiplied by the greater of (a) the number of Students who have received services in the 60 days before termination or (b) the number of Contracted Students (the “TERMINATION LIQUIDATED DAMAGES AMOUNT”) by way of liquidated damages. LEA acknowledges that the actual damages likely to result from breach of this Section are difficult to estimate on the Effective Date hereof and would be difficult for CONTRACTOR to prove. The parties intend that LEA’s payment of the TERMINATION LIQUIDATED DAMAGES AMOUNT would serve to compensate CONTRACTOR for LEA’s breach of its obligations under this Section, and they do not intend for it to serve as punishment or penalty for any such breach by LEA.
17 Confidentiality of Contractor and Third Party Information
LEA understands that it may receive confidential and proprietary information relating to CONTRACTOR’s business. LEA agrees that the CONTRACTOR’s proprietary information is confidential and is the sole, exclusive and extremely valuable property of CONTRACTOR. In addition, LEA understands that it may receive confidential and proprietary information of third parties, including but not limited to information and materials relating to assessments, in the course of the provision of services. To the extent permitted by law, LEA agrees that it will keep confidential the confidential and proprietary materials and information of CONTRACTOR and third parties which it receives pursuant to the Master Contract. LEA also agrees that it will not disclose materials relating to an assessment to the student who will be assessed before it is necessary to do so to perform such an assessment. It is understood and agreed that money damages would not be a sufficient remedy for any LEA breach of confidentiality and that CONTRACTOR shall be entitled to specific performance, including, without limitation, injunctive relief, as a remedy for any such breach by the LEA in any court of competent jurisdiction. Such remedy shall not be deemed to be the exclusive remedy for breach of confidentiality but shall be in addition to all other remedies available at law or equity.
18 Student Benchmarking Data
If LEA collects benchmarking data at the individual or school level, LEA shall provide CONTRACTOR with such benchmarking data for the individual students and school served pursuant to this Master Contract. To the extent not prohibited by applicable law, CONTRACTOR may store indefinitely, use and publish deidentified benchmarking data.
Each Party’s indemnification obligations are conditioned upon: (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed; (b) complete control of the defense and settlement thereof by the indemnifying party, provided that no settlement of an indemnified claim shall be made without the consent of the indemnified party, such consent not to be unreasonably withheld or delayed; and (c) reasonable cooperation by the indemnified party in the defense as the indemnifying party may request. The indemnified party shall have the right to participate in the defense against the indemnified claims with counsel of its choice at its own expense.
20 LEA Representations and Warranties
- LEA hereby represents and warrants that, prior to receiving services, it will provide CONTRACTOR with the conditions described in the Environment, Equipment and Supervision Specifications, available at https://presencelearning.com/tc/eq-spec/, and other conditions as set forth by CONTRACTOR. If LEA does not provide CONTRACTOR with the specified conditions, as determined by CONTRACTOR in its sole discretion, within 30 days of the beginning of an Initial Term or Renewal Term, CONTRACTOR does not guarantee sufficient clinician availability to provide services.
- LEA hereby represents and warrants that it will comply with any applicable law concerning services, including but not limited to obtaining informed parental consent where required, and take no action that prevents or impedes CONTRACTOR or its employees, contractors or subcontractors from complying with any applicable law.
- LEA hereby represents and warrants that any signatory to or Point of Contact identified on behalf of LEA in the Ordering Document (“Partner Authorized Individual”) has the authority to enter into an Ordering Document for the provision of services.
- LEA hereby represents and warrants that any LEA Authorized Individual has the authority to enter into an Ordering Document for the provision of Services.
- LEA represents that it has verified the accuracy, completeness and appropriateness of all students’ medical, educational, demographic, disciplinary, and therapeutic-related information (“Student Records”) prior to LEA’s providing CONTRACTOR with access to such Student Records. LEA acknowledges and agrees that the professional duty to educate, supervise and treat the students lies solely with LEA, and that the provision of Services in no way replaces or substitutes for the professional judgment of LEA or a Clinician.
- LEA acknowledges that CONTRACTOR is not a healthcare provider or Clinician, and that it cannot and does not independently review or verify the medical accuracy or completeness of Student Records made available to it pursuant to this Master Contract.
The Parties agree that mutual consent is required for the initial publication or distribution of any research and/or marketing materials, including without limitation, customer or vendor lists, press releases, and research and case studies mentioning both Parties, but that once this consent is given for initial publication the Parties may republish such works in their original or reasonably modified form at will.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration proceedings shall be confidential and conducted in the English language before a single neutral arbitrator to be selected by AAA. The place of arbitration shall be San Francisco, California.
CONTRACTOR’s rights and obligations under the Master Contract will bind and inure to the benefit of its successors and permitted assigns.
24 Disclaimer of Warranties
Except as otherwise expressly set forth in this Master Contract, SERVICES are provided “as is” without any warranty and CONTRACTOR expressly disclaims any and all warranties, express, implied, or statutory, including warranties of title, noninfringement, merchantability, and fitness for a particular purpose.
25 Matters Unrelated to the Provision of Services to LEA
CONTRACTOR’s certification or licensure, or lack thereof, by any other state to provide special education and related services, and designated instruction and related services under the federal Individual with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), has no bearing on LEA’s obligations under the Master Contract. Further, the Master Contract subjects CONTRACTOR to no obligations concerning individuals employed, contracted, and/or otherwise hired or sub-contracted by CONTRACTOR who will not be providing services to LEA pupils. By way of example, CONTRACTOR need not obtain, retain, or provide to LEA, current licenses, credentials, certifications, permits, criminal background check clearance, or related documentation for employees or independent contractors whom CONTRACTOR determines will not provide services to and will have no direct contact with LEA pupils.
26 Master Contract Provisions Inapplicable to Services
To the extent that SERVICES are delivered online, CONTRACTOR shall have no obligations under the Master Contract which are related to or contingent upon the use of a physical facility to deliver services, or on in-person contact with LEA pupils. Sections of the Master Contract titled or concerning Class Size, Least Restrictive Environment, Statewide Achievement Testing and High School Exit Examination, Positive Behavior Interventions, Surrogate Parents and Foster Youth, Pupil Discipline, Complaint Procedures, Transcripts, Student Change in Residence, Parent Access, Licensed Children’s Institution Contractors, State Meal Mandate, Facilities and Facilities Modifications, Incident/Accident Reporting, Surrogate Parents and Foster Youth, and Administration of Medication are understood to be inapplicable to the Parties’ agreement and impose no obligations upon either party.