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Application License and Support Agreement Catapult Connect

THIS APPLICATION LICENSE AND SUPPORT AGREEMENT (“Agreement”) is entered into as of date Quote is signed (“Acceptance Date”),  by and between Client and DIVERSE NETWORK ASSOCIATES, INC., a California corporation, dba “CATAPULTK12” (“Company”), whose principal administrative address is 5098 Foothills Blvd, Ste 3-396, Roseville, CA 95747. Client and Company are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Company has developed a web-based application accessible through a web platforms branded as “CATAPULT EMS” (the “SYSTEM,” including the EMS APP) which allows educational facilities to manage emergency or potentially urgent situations affecting its staff or students; and

WHEREAS, the SYSTEM is designed to obtain and use information from Client’s STUDENT INFORMATION SYSTEM (“SIS”) to provide an informational and responsible tool for administrators, teachers, emergency response agencies and parents alike to help identify and respond to emergencies using the Company’s proprietary web-based and/or phone based platform (the portal for information by Client, website and EMS APP are referred to as the “SYSTEM”); and

WHEREAS, the SYSTEM is designed to allow for the submission of information to Client regarding an emergency event (“CONTENT”), at which time the Client may elect to either accept the CONTENT and release it for dissemination on the SYSTEM or deny the CONTENT; and
WHEREAS, Client desires to have access to and use the SYSTEM to intake, manage, monitor and respond to emergency situations on or about its campus, and enlist Company for various support in the setup and use of the SYSTEM for its administrative purposes, ultimately with the aim of mitigating or avoiding injury, hazards, loss or chaos; and,
WHEREAS, the Company has agreed to grant the Client a non-exclusive license to use the SYSTEM and associated support, upgrades and SERVICES as provided in this Agreement, and to provide certain SERVICES to the Client in respect of delivery technical support and training upon the terms and conditions of this Agreement. THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
  1. Definitions

    In this Agreement, unless the context otherwise requires:

    ‘ADDITIONAL CHARGES’ means the charges for additional work that are not included in the ANNUAL SERVICE FEE which shall be at our standard hourly rate for general labor or for programmer and/or IT labor. Under no circumstances shall Company perform additional work not included in the ANNUAL SERVICE FEE without prior written consent of Client.

    ‘CONTENT’ means information submitted to Client via the SYSTEM regarding an emergency event.

    ‘EMS APP’ means the phone-based platform of the SYSTEM associated with the delivery of the SERVICES to Client.

    ‘INITIAL SETUP FEE’ means the fee or fees for the setup, training, etc., as detailed in the SIGNED QUOTE.

    ‘ANNUAL SERVICE FEE’ means the fee for use of the SYSTEM as provided in the SIGNED QUOTE; the same may be changed in accordance with Paragraph 3 below.

    ‘NEW RELEASE’ means any improved modified or corrected version of the EMS APP or SYSTEM or PROGRAM DOCUMENTATION from time to time issued by the Company.

    ‘PROGRAM DOCUMENTATION’ means any instruction manuals, USER guides and other information to be made available from time to time during this Agreement by the Company at its discretion in either printed or in a readable form available online to the Client.

    ‘PUPIL RECORD(S)’ means any information directly related to a pupil that is maintained by the Client or information acquired directly from the pupil through the use of the SYSTEM.

    ‘SERVICES’ means the provision of training, data installation, and Technical Support provided by Company in accordance with this Agreement as detailed below.

    ‘SIGNED QUOTE’ means the CATAPULT K12 quote signed by the Client.

    ‘SITE SAFETY TEAM’ means any individual(s) authorized by the Client to access and manage the SYSTEM, including approving or denying CONTENT on the SYSTEM.

    ‘SITE(S)’ means the address(es) for delivery of the SYSTEM Materials specified by the Client.

    ‘SITE TEAM’ means the individual teachers and general staff members employed at Client’s individual Sites.

    “STUDENT INFORMATION SYSTEM (SIS)” means the program and/or database of the Client which contains information on its student body.

    ‘SYSTEM’ means the software programs, website, EMS APP (if applicable) and other elements associated with the delivery of the SERVICES to Client, and that which is integrated with the SIS of Client.

    ‘SYSTEM PUPIL RECORD(S)’ means the data from the SIS used on the SYSTEM, including the names of each student, that student’s personal ID, the teacher and schedule information for each student, and emergency contact information for each student..

    ‘USER’ or ‘USERS’ means any person or persons from the District, such as the Client’s SITE SAFETY TEAM, who use the SYSTEM.


     
  2. Grant of License & Provision of Services

    The Company in consideration of the payment by the Client of the ANNUAL SERVICE FEE in accordance with Paragraph 3 below hereby:

    (i) grants to the Client a non-exclusive license to Use the SYSTEM (and where appropriate the PROGRAM DOCUMENTATION) and to possess and refer to the PROGRAM DOCUMENTATION; and (ii) undertakes to the Client to provide the SERVICES upon the terms and conditions of this Agreement.


     
  3. Fees

    3.1 The INITIAL SETUP FEE shall be levied by the Company as provided in the SIGNED QUOTE. It is a one-time setup fee that includes: (a) system setup as detailed in the SIGNED QUOTE; (b) training to use and manage the SYSTEM.

    3.1 The ANNUAL SERVICE FEE shall be levied by the Company as provided in the SIGNED QUOTE. Other discounts and offers may be detailed in the SIGNED QUOTE. The ANNUAL SERVICE FEE, defined in the SIGNED QUOTE, will be billed at the start of Acceptance Date or within two months of signing this agreement, whichever comes first. In the event of cancellation or default in payment, SYSTEM will be suspended and taken offline. A fee may apply to reinstate SYSTEM.

    3.2 The ANNUAL SERVICE FEE shall include: (a) unlimited use of the SYSTEM during the term of this Agreement; (b) unlimited technical support, as provided herein; and, (c) free upgrades and support to any new and modified versions of the SYSTEM throughout the term of this Agreement, as provided herein.

    3.3 After the Initial Term, the Company shall be entitled to change the ANNUAL SERVICE FEE not more than once in every successive period of twelve (12) months during any extended term of this Agreement upon giving not less than sixty (60) days’ notice thereof to Client.

    3.4. Any ANNUAL SERVICE FEE not paid within sixty (60) days of the due date shall be considered late and automatically subject to a late charge equal to 2.0% of the amount of the delinquency per month, plus a $100 late fee. All payments will be first applied to past due balances.


     
  4. Term of Agreement and Additional Term(s)

    Unless otherwise stated in the SIGNED QUOTE, the “Initial Term” of this Agreement shall be a period of twelve (12) months. At the end of the Initial Term, this Agreement shall automatically renew for a period of twelve (12) months between Company and Client (“Additional Terms”) unless either party sends the other party a written notice of termination at least thirty (30) days prior to the expiration of the then-current term. The terms of this Agreement shall apply to any Additional Terms. The sum of the Initial Term and Additional Terms shall not exceed ten (10) years except by mutual written agreement.


     
  5. Installation, Setup & Use

    5.1 The Parties acknowledge that the proper function and utility of the SYSTEM requires that PUPIL RECORDS be made available to Company through Client’s SIS. In order to protect and safeguard any PUPIL RECORDS obtained by Company, Company has developed a strict set of policies and integrated security technologies into the SYSTEM. Any PUPIL RECORDS obtained by Company shall be password protected on the SYSTEM and under no circumstances shall any PUPIL RECORDS be made available to the public by Company. Company and Client agree that the SYSTEM shall only use the data which constitutes the SYSTEM PUPIL RECORDS and only in the ways prescribed in this Agreement. Prior to Client’s use of the SYSTEM, Client is required to provide Company with access to its SIS for the purpose of extracting PUPIL RECORDS to enable Company to set up Client’s account in the SYSTEM. Client agrees to diligently cooperate with Company through Company’s designated contact person, and provide Company with access to Client’s SIS. It is the responsibility of Client to provide the particular formatting, size, quality and file types necessary to integrate into the SYSTEM, and only provide the information on students which is necessary for the proper function of the SYSTEM. The Client shall communicate to the Company upon the date hereof, the identity of the person(s) or the department who shall act as the sole contact point and channel of communication for the provision by the Company of the SERVICES during the term(s) of this Agreement. The Client shall forthwith inform the Company of any change in the identity or contact information for the contact person.

    5.2 Any time PUPIL RECORDS are extracted from Client’s SIS, Company and Client shall review its CONTENT to ensure that the PUPIL RECORDS do not include unnecessary confidential information of any students. Once Company has confirmed that the PUPIL RECORDS obtained from Client’s SIS does not contain unnecessary information of any students, Company shall transfer and upload the PUPIL RECORDS to the SYSTEM and the Client shall appoint such person who shall hold administrator privileges (“District Administrator”). The District Administrator shall be given password-protected access to the PUPIL RECORDS and shall be solely responsible for granting similar administrator privileges to other staff in the District, in its discretion. The SYSTEM includes customary password-protected access and other customary data protections. Company shall not access, alter, modify edit or disclose any PUPIL RECORDS on the SYSTEM in accordance with Section 25 herein.

    5.3 The ANNUAL SERVICE FEE includes Client access to any Wizard, self-help, FAQs or other written materials that Company may create from time to time, without additional cost, and as otherwise provided in Section 6, below.

    5.4 Company’s access to Client’s SIS and PUPIL RECORDS shall comply with Section 25 to the Agreement – Ownership and Control of PUPIL RECORDS.

    5.5. Company shall have the right and obligation to control the use and display of CONTENT on the SYSTEM through the creation and maintenance of a SITE SAFETY TEAM, as follows:

    a. General Duties of Site Safety Team. All members of Client’s SITE SAFETY TEAM must conform and comply with this Agreement.

    b. True and Accurate Information. It is acknowledged that emergency situations might include hazy or only partial information. Any CONTENT submitted to the SYSTEM shall be honest and truthful in every respect and shall only provide information that Client’s SITE SAFETY TEAM has the express legal rights to offer, divulge or use; and may never include intentionally misleading or false information. In the event any USER reasonably determines that any CONTENT that has been approved for dissemination on the SYSTEM is false, misleading, defamatory or breaches the privacy rights of another party, that USER can forward a request to remove the CONTENT to Client’s SITE SAFETY TEAM or to Company at: contact@CatapultK12.com (generally, ”Request For Removal“). Company makes no representations that it will remove the CONTENT, or do so in any particular time frame, nor will Company’s receipt of a Request For Removal in any way alter or expose Company to any affirmative duty to police or remove CONTENT, or be responsible in any way for the CONTENT of a USER; provided however, that the District Administrator shall have concurrent authority to request removal of any CONTENT that is false, misleading, defamatory or breaches the privacy rights of another party in its sole discretion. Any and all requests to remove CONTENT shall be provided to the Client’s SITE SAFETY TEAM immediately upon receipt of the same by Company. Company shall not remove any CONTENT without the written consent of the SITE SAFETY TEAM, provided that the Client shall hold Company, and Company’s officers, directors, managers, employees and contractors, free and harmless from any costs, claims, fines, lawsuits, attorneys’ fees and other out-of-pocket expenses which arise from or relate to CONTENT that is not removed after request by Company to remove such CONTENT.

    c. Protection of Confidential Medical Information (HIPAA) or other Information Privacy Statutes. To the extent a USER handles, discloses, includes, discusses or otherwise might divulge medical information or statistics, it shall do so strictly in conformity with the Health Insurance Portability and Accountability Act (HIPAA) and all other applicable state and federal rules, including any privacy laws in the State of California. No personally identifiable medical information for any person is permitted except as is necessary and authorized by the appropriate parties.

    d. Right to Exclude. Client, through the SITE SAFETY TEAM, shall be solely responsible and have the exclusive right to grant access to and use of the SYSTEM granted to Client. Client may permit or deny a USER’S access to the SYSTEM in its discretion.

    e. Disclaimed Duty to Monitor or Police CONTENT. Company has no obligation to monitor, control, accept, review, remove or update any CONTENT or other materials on the SYSTEM. Company is merely a conduit for the flow of information from Client, to the SITE SAFETY TEAM, and to the teachers, emergency responders, parents, pupils or other parties to which Client elects, in its discretion, to grant access. Each USER specifically agrees to independently verify all CONTENT and in no case shall Company be responsible for any misleading, false or other bad CONTENT provided by the USERS. In the case where Company is made aware of misleading, false or other bad CONTENT, it has the right (but not the obligation) to remove such CONTENT from the SYSTEM. In the event that Company removes any CONTENT from the System, it shall immediately notify the SITE SAFETY TEAM in writing by providing notice of the removal of the CONTENT and the basis for the removal of the CONTENT. The SITE SAFETY TEAM shall have the right to have any removed CONTENT reinstated.

    f. For sake of clarity, the disclaimer set forth in Section 5.5(e) above applies to CONTENT related to incidents related to the SARS-CoV-2 virus (“Covid 19”). Company shall have no liability whatsoever for any CONTENT appearing on the SYSTEM, or for Company’s action or inaction with respect to its review, removal or modification of any CONTENT related to Covid 19.


     
  6. Technical support

    6.1 Beginning on the Acceptance Date and for the duration of this Agreement, the Company shall provide the as provided in Section 6.2, and ongoing Standard Technical Support (defined in Section 6.3).

    6.2 Client may request direct training for the initial setup. The purpose of the direct training is to “train the trainers,” such that Client should select people to be trained who in turn can re-train other personnel of the school/district. Company reserves the right to conduct the training in-person or by video conference, or by other similar means or methods. Limitless training on the SYSTEM is not included. The Company will provide additional training at its standard training rate(s).

    6.3 Standard Technical Support shall consist of advice by telephone or email on the access and use of the SYSTEM, and training on any upgrades during the TERM of this Agreement. There are no minimum hours, set schedule or maximum response periods guaranteed.

    6.4 In the event of a bug or defect, Client shall supply in writing to the Company a detailed description of any fault requiring technical support and the circumstances in which it arose forthwith upon becoming aware of the same. Company shall take reasonable efforts to fix the bug or defect in a reasonable period of time.

    6.5 Notwithstanding anything to the contrary in this Agreement, if Company and Client reasonably determine that the bug or defect is caused in whole or in part as a result of Client’s equipment, use, or special needs, then Company shall have the right to impose ADDITIONAL CHARGES for any time incurred to cure or fix the bug or defect. If ADDITIONAL CHARGES are necessary, Company shall provide Client with a written description of the cause of the bug or defect requiring such ADDITIONAL CHARGES, a description of the required work, the estimated time to complete such work and the per hour rate for such work. Under no circumstances shall Company perform additional work not included in the ANNUAL SERVICE FEE without prior written consent of Client.


     
  7. Property Rights and Confidentiality

    7.1 The SYSTEM, including the EMS APP, software, written materials, logos, methods, names, pricing, PROGRAM DOCUMENTATION and processes (collectively, “Intellectual Property”) contain confidential information of the Company and all copyrights, trademarks and other intellectual property rights are the exclusive property of the Company.

    7.2 The Client shall not divulge, circulate, or otherwise misappropriate the Intellectual Property of Company, and shall not reverse compile, copy or adapt the whole or any part of the Intellectual Property except as expressly authorized by this Agreement; nor shall Client remove or alter any copyright or other proprietary notice on any of the Intellectual Property.

    7.3 The Client shall: (a) keep confidential the Intellectual Property and limit access to the same to those of its employees agents and subcontractors who either have a need to know or who are engaged in the proper Use of the Intellectual Property; (b) notify the Company immediately if the Client becomes aware of any unauthorized use of the whole or any part of the Intellectual Property by any third party; and (c) without prejudice to the foregoing take diligent steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company.

    7.4 The Client shall inform all relevant employees agents and subcontractors that the Intellectual Property contains confidential information of the Company and that all intellectual property rights therein are the property of the Company and the Client shall take all such steps as shall be necessary to ensure compliance by its employees agents and subcontractors with the provisions of this Paragraph 7.

    7.5 Company owns all right, title and interest in the SYSTEM and related documents and SERVICES related to this Agreement, except for those rights specifically granted to Client herein. In the event that Company makes any custom or modified versions of the Intellectual Property at the request of Client, or which is needed to accommodate the special needs of Client, Company shall be deemed to be the sole and exclusive owner of all right, title and interest in the custom or modified items; provided that, Client shall have a non- exclusive license to use the custom or modified items during the term of this Agreement.

    7.5 Company owns all right, title and interest in the SYSTEM and related documents and SERVICES related to this Agreement, except for those rights specifically granted to Client herein. In the event that Company makes any custom or modified versions of the Intellectual Property at the request of Client, or which is needed to accommodate the special needs of Client, Company shall be deemed to be the sole and exclusive owner of all right, title and interest in the custom or modified items; provided that, Client shall have a non- exclusive license to use the custom or modified items during the term of this Agreement.


     
  8. Warranties & Limitations

    8.1 The Company hereby warrants to Client that:

    (a)    the Company is the owner of the SYSTEM. Including the EMS APP (or has the right to grant to Client the license to use the SYSTEM, EMS APP and related materials) in the manner and for the purposes set forth in this Agreement without violating any rights of a third party;

    (b)    subject to the limitations in this Agreement, and subject to the right to cure or fix any bug or defect, the products or SERVICES referenced in this Agreement will operate substantially as contemplated by this Agreement, in that Client shall be able to use the SYSTEM substantially as intended, provided that this warranty does not warrant against downtime, bugs, hackers, time for updating, time for installation, and the like; but provided further, that Company shall apply commercially reasonable efforts to avoid or remedy unwanted downtime as provided in this Agreement. Company understands that Client expects to use the SYSTEM to intake, manage, monitor and respond to emergency situations on or about its campus, and enlist Company for various support in the initial setup and use of the SYSTEM for its administrative purposes, ultimately with the aim of mitigating or avoiding injury, hazards, loss or chaos. Company represents and warrants that the SYSTEM will operate reasonably within the parameters established by this Agreement and the PROGRAM OVERVIEW.

    8.2 The Client shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty, which, shall not be longer than forty-eight (48) hours from the date of discovery or the date it should have reasonably been discovered with diligent due care.

    8.3 THE WARRANTIES SET FORTH ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION THAT THERE ARE: (a) NO WARRANTIES THAT THE SYSTEM IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY ARE EXPRESSLY DISCLAIMED; AND (c)    ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY STATED HEREIN ARE EXPRESSLY DISCLAIMED, SUCH THAT ALL PRODUCTS AND SERVICES ARE LICENSED, OFFERED AND USED ON AN “AS-IS” BASIS.

    8.4 Limitation of Liability. For valuable consideration, and notwithstanding anything to the contrary in this Agreement or the exhibits, Client agrees that (A) Company shall have no liability whatsoever for any CONTENT appearing on the SYSTEM, or for Company’s action or inaction with respect to its review, removal or modification of any CONTENT, and (B) Company’s liability, if any, otherwise arising out of or in connection with the access to, use, or performance of the SYSTEM, or this Agreement, shall be limited to recovery of any ANNUAL SERVICE FEES paid under this Agreement, and that Client acknowledges and accepts these limitations as they are a material inducement to Company in agreeing to enter into this Agreement and to offer the price and other terms herein. In the event of any breach of this Agreement by Company, Client agrees that it shall issue a notice to Company with facts sufficient to show the breach and matters required to cure the breach (if such breach is curable), at which time Company shall have 15 business days to cure the breach (if such breach is curable), and only if Company does not cure the breach, then Client may seek recovery as provided in this Agreement, always limited to the cap on liability and damages under this Section 8.4.


     
  9. Indemnification

    9.1 Client agrees to defend, indemnify, and hold harmless Company from any and all claims, damages, liabilities, losses, and expenses, including actual attorneys’ fees and costs, arising out of or in any way resulting from acts or omissions of Client, its agents, employees, contractors, subcontractors, servants, invitees in conjunction with this Agreement, which Company may sustain from any cause including, but not limited to, bodily injury, including death, sustained by any person or persons, including employees of Client, or on account of damage to property of others, including loss of use thereof, whether such injuries to person or damage to property are due, or claimed to be due, to any negligence of the Client, whether active or passive, it’s or their agents, employees, contractors, subcontractors, or other persons, except for liability resulting from the sole or active negligence, or willful misconduct of Company, its agents, employees, contractors, subcontractors, servants, invitees in conjunction with this Agreement. Client’s agreement and obligation under this paragraph include, but are not limited to, defense and indemnity for any claim, suit, complaint, or cross-complaint which may be brought against Company by any person or organization in conjunction with this Agreement.


     
  10. Intellectual Property Rights of Others

    10.1 In the event of any claims by third parties of Intellectual Property infringement by the Company, Company shall be entitled at its own expense and option either to:

    (a)    procure the right from such third party for the Client to continue using the materials claimed to infringe and keep this Agreement in full force and effect;

    (b)    make such alterations modifications or adjustments to the SYSTEM, including the EMS APP or other infringing element so that they become non- infringing without incurring a material diminution in performance or function and keep this Agreement in full force and effect; or

    (c)    replace the SYSTEM Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function and keep this Agreement in full force and effect.

    10.2 If the Company in its reasonable judgment is not able to exercise any of the options set out in Paragraph 10.1 above within ninety (90) days of the date it received notice of Intellectual Property infringement, then this Agreement shall be terminated without any further force or effect and Company shall not be liable for any damages to Client except that Client shall be relieved of any further obligations under this Agreement except the obligation to return all Intellectual Property to Company.

    10.3 Company shall indemnify, defend, and hold harmless Client, its Board of Education, its officers, agents, and employees against all losses, damages, liabilities, costs and expenses (including, but not limited to, attorneys’ fees) resulting from any judgment or proceeding in which it is determined or any settlement contract arising out of the allegation, that Company furnishing or supplying Client with Software and/or SERVICES under the Contract or the Client’s use of the Company SYSTEM under the Contract constitutes an infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party (“Third Party Rights”). The foregoing shall not apply unless Client has informed Company as soon as practicable of the suit or action alleging such infringement. Client retains the right to participate in the defense against any such suit or action. Client agrees to provide Company with prompt notice of any such claims and to permit Company to defend any claim or suit, and that it will cooperate fully in such defense. Client reserves the right to employ separate counsel and participate in the defense of any claim at its own expense. No limitation of liability set forth elsewhere in the Contract, if any, is applicable to Intellectual Property Indemnity. Should the Company SYSTEM or the operation thereof become or, in Company’s opinion, appear likely to become, the subject of a claim of infringement or violation of Third Party Rights, the Client shall permit Company at its option and expense either to procure for the Client the right to continue using the Company technology or to replace or modify it with non-infringing software with equivalent or better functionality that is reasonably satisfactory to the Client.

    10.4 Company respects the intellectual property rights of others and expects USERS of the SYSTEM to do the same. Company will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If USER believes that USER’S copyrighted work has been copied without USER’S authorization and is available on or in the SYSTEM in a way that may constitute copyright infringement, USER may provide notice of USER’S claim to the Company as outlined in the Company copyright policy, below.

    10.5 Copyright Policy. If any USER or person believes that any material on the SYSTEM violates this agreement or USER’S intellectual property rights, that person should notify Company as soon is possible by sending an email to Company with information supporting the belief of infringement, and in accordance with the Digital Millennium Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) USER’S contact information, including USER’S address, telephone number, and an email address; (v) a statement by USER that USER has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that USER is authorized to act on behalf of the copyright owner. Company reserves the right to remove CONTENT alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, Company will also terminate Client’s Account if the USER is determined to be a repeat infringer of Client.


     
  11. Later Versions

    Client shall be entitled to access and use of any upgrades to the SYSTEM, including the EMS APP, without costs so long as Client is in good standing and has faithfully performed the terms and conditions of this Agreement (generally, “Later Versions”). However, Later Versions shall not include add-ons, new features and other pay-per-use features that are charged by use in the discretion of Company.


     
  12. Termination

    12.1 This Agreement may be terminated:

    (a)    at the expiration of a then-current term;

    (b)    by Company if the Client fails to pay a ANNUAL SERVICE FEE when due after giving Client thirty (30) days’ notice to cure the late payment;

    (c)    forthwith by either party if the other commits any material breach of any term of this Agreement; or

    (d)    as otherwise provided in this Agreement.

    12.2 Any termination of this Agreement pursuant to this Paragraph shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. There is no partial refund of fees as provided in this Agreement upon an early termination by Client.

    12.3 In the event of a dispute between the parties as to the performance of the SYSTEM, interpretation of this Agreement, or payment of nonpayment for work performed or not performed, the parties shall attempt to resolve the dispute. Pending resolution of this dispute, Company agrees not to cancel or disrupt Client’s access to, and use of the SYSTEM and all related SERVICES. If the dispute is not resolved, Company shall give notice of termination and will continue to allow Client access to, and use of the SYSTEM and all related SERVICES for a period of sixty (60) days from the time Client receives notice of termination. The parties may agree in writing to submit any dispute between the parties to arbitration.

    12.4 Termination for Convenience. The Client may terminate this Agreement for its convenience at any time provided that Client first provided Company with at least thirty (30) days written notice of such termination for convenience.


     
  13. Force Majeure

    13.1 Company shall not be liable, nor shall this Agreement be terminated, for any breach of its obligations hereunder resulting from causes beyond its reasonable control. “Force Majeure” means any event or circumstances beyond the reasonable control of and without the fault or negligence of the Party claiming Force Majeure as described by Civil Code Section 1511, which cannot through reasonable efforts (not including litigation) be overcome or substantially mitigated by the affected Party. It shall include, without limitation, power interruptions or outages; fires, strikes (of its own or other employees), insurrection or riots, embargoes, and interference by civil or military authority (an “Event of Force Majeure”).

    13.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

    13.3 If an Event of Force Majeure shall continue for more than seven (7) days, the ANNUAL SERVICE FEES shall be abated until such time as SERVICES are restored; or in the election of Company, if the time, costs or problems encountered to fix the Event of Force Majeure are too costly or otherwise not acceptable, Company may terminate this Agreement without any further obligation and without liability to Client unless Company was the actual cause of the Event of Force Majeure.


     
  14. Waiver

    The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.


     
  15. Notices

    Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class regular mail or by facsimile transmission (such facsimile transmission notice to be confirmed by letter mailed within twelve (12) hours) to the address or to the facsimile number of the other party set out in the SIGNED QUOTE of this Agreement (or such other address or numbers as may have been notified).


     
  16. Invalidity and Severability

    If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.


     
  17. Entire Agreement

    The Company shall not be liable to the Client for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this Agreement other than those representations agreements statements or undertakings confirmed by a duly authorized representative of the Company in writing or expressly incorporated or referred to in this Agreement.


     
  18. Successors

    This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.


     
  19. Assignment and Sublicensing

    The Client shall not be entitled to assign or otherwise transfer this Agreement nor any of its rights or obligations hereunder nor sublicense the use (in whole or in part) of the Intellectual Property without the prior written consent of the Company.


     
  20. Headings

    Headings to Paragraphs in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.


     
  21. Law

    This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties hereto agree to submit to the non exclusive jurisdiction of the California courts. Venue shall be in Placer County, California.


     
  22. Miscellaneous

    The recitals are incorporated into this Agreement. Time is of the essence. Neither party shall have a presumption of ambiguity placed in their favor, and the parties have both had an opportunity to review and negotiate the terms hereof, and they both expressly disclaim any presumptions in the interpretation or construction of this Agreement.


     
  23. Insurance

    Company agrees to carry and maintain, throughout the term of this Agreement, comprehensive commercial general liability insurance with limits of Two Million Dollars ($2,000,000) per occurrence combined single limit for bodily injury and property damage in a form mutually acceptable to both Parties to protect Company and Client against liability or claims of liability which may arise out of this Agreement. Company further agrees to carry and maintain, throughout the term of this Agreement, Cyber Liability Insurance to cover Security, Privacy, Business Interruption, Cyber Extortion and Denial of Service with limits of Two Million Dollars ($2,000,000) per occurrence. Company further agrees to carry and maintain, throughout the term of this Agreement, errors and omissions insurance, where such policy limits shall be at least Two Million Dollars ($2,000,000) per occurrence, and cover technology errors and omissions items. Collectively, each of the foregoing are referred to as the “Required Insurance”. Company agrees to provide an endorsement to each policy stating such insurance as is afforded by this policy shall be primary, and any insurance carried by Client shall be excess and noncontributory. Company agrees to maintain workers’ compensation insurance as required under the laws of the State of California.


     
  24. Privacy Policy and Terms and Conditions of Use for Diverse Network Associates, Inc.

    In agreeing to the Application License and Support Agreement, the Client also agrees to the Privacy Policy found online at https://www.catapultk12.com/emergency-management/privacy-policy and the Terms and Conditions of Use for Diverse Network Associates, Inc. found online at https://www.catapultk12.com/emergency-management/terms-and-conditions.


     
  25. Ownership and Control of Pupil Records

    25.1 PUPIL RECORDS. PUPIL RECORDS shall continue to be the property of and under the control of the Client in accordance with California Education Code section 49073.1. For purposes of this Section 25, “De-identified Information” means information that cannot be used to identify an individual pupil. For purposes of this Agreement, “PUPIL RECORDS” does not include De-identified Information, including aggregated De-identified Information, used by Company to improve educational products for adaptive learning purposes and for customizing pupil learning; to demonstrate the effectiveness of Company’s products in the marketing of those products; or for the development and improvement of educational SITES, SERVICES, or applications.

    25.2 Ownership and Control of Pupil-Generated CONTENT. The Company does not provide a platform by which pupils can create CONTENT; therefore, the Company does not provide a means by which pupils may retain possession and control of such CONTENT.

    25.3 Use of PUPIL RECORDS. Company shall not use any information in the PUPIL RECORDS for any purpose other than those required or specifically permitted by this Agreement.

    25.4 Review of PUPIL RECORDS. Parents, legal guardians, or eligible pupils may review personally identifiable information in the pupil’s records and correct erroneous information by contacting the Client. Client’s district personnel shall have direct access to pupil data via the CatapultEMS product account login to review pupil data. Company will provide Client with a copy of pupil data, and shall modify and/or delete such data upon written request by the Client. Company shall provide such PUPIL RECORDS and/or correct such errors within five (5) days of receipt of written notice. Company shall reasonably cooperate with the Client in complying with this mandate.

    24.5 Security and Confidentiality of PUPIL RECORDS. Company is committed to maintaining the security and confidentiality of pupil records. To that end, the Company has taken the following actions: (a) limiting employee access to pupil data based on roles and responsibilities; (b)    conducting background checks on employees who have access to student data; (c) conducting privacy training that includes FERPA for employees with access to pupil data; (d) protecting personal information with technical, contractual, administrative, and physical security safeguards in order to protect it from unauthorized access, release or use.

    25.6 Breach Notification Process. Company, within one (1) business day of actual discovery of any breach or unauthorized disclosure of PUPIL RECORDS, shall notify Client in writing of the breach or unauthorized disclosure. Company’s report shall identify: (i) the nature of the unauthorized use or disclosure; (ii) the PUPIL RECORDS used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what Company has done or shall do to mitigate any effect of the unauthorized use or disclosure, (v) what corrective action Company has taken or shall take to prevent future similar unauthorized use or disclosure, and (vi)    Company personnel that Client can contact. Company shall provide such other information, including a written report, if requested by Client. Company will keep Client fully informed until the incident is resolved.

    25.7 Retention and Destruction of PUPIL RECORDS. Company certifies that a PUPIL’S RECORDS shall not be retained or available to Company upon completion of the term of this Agreement. At the termination of this Agreement, PUPIL RECORDS in the possession of Company shall be returned and/or destroyed. Upon termination, cancellation, expiration or other conclusion of this Agreement, Company shall return all PUPIL RECORDS to Client in a format acceptable to Client, or if return is not feasible as determined by Client in written notice to Company, destroy any and all PUPIL RECORDS. Company shall not destroy any PUPIL RECORDS without express written permission of Client. Company shall comply with any litigation hold or order to preserve PUPIL RECORDS.

    25.8 Compliance with FERPA. Company agrees to work with Client to ensure compliance with FERPA and the Parties will ensure compliance by providing parents, legal guardians or eligible students with the ability to inspect and review pupil records and to correct any inaccuracies therein. The parties acknowledge and agree that the Client is subject to federal and local laws relating to the protection of personally identifiable information (“PII”) of students, including FERPA, and that Company is obtaining such PII as a “school official” under section 99.31 of FERPA for the purpose of providing the SERVICES hereunder.

    25.9 Prohibition on Targeted Advertising. Company prohibits using personally identifiable information in PUPIL RECORDS to engage in targeted advertising.

    25.10 Termination. If Client reasonably determines in good faith that Company has materially breached any of its obligations under this Amendment or the Agreement, Client, in its sole discretion, shall have the right to provide Company with written notice of a fifteen (15) day period to cure the breach. If Company fails to cure a breach within that period of time, Client may terminate the Agreement immediately. If, in its sole discretion, Client determines that a cure is not possible, Client may provide written notice of immediate termination of the Agreement.

    25.1 through 25.10, Client acknowledges that Company is not responsible for deciding if, when or how to display PUPIL RECORDS on the SYSTEM, and that all PUBLIC RECORDS shall be maintained on the SYSTEM where the authority to view the PUPIL RECORDS is given solely to the Client. Client shall have the right, at all times, to decide if, how and when to use the PUPIL RECORDS.


     
  26. Third Party Services

    Company may share information with third party vendors, hosting partners, and analytic companies including but not limited to Amazon Web Services and Twilio, to provide the necessary hardware, software, emailing, networking, storage, and related technology required to perform the Services. These companies are authorized to use Client’s Personal Information only as necessary to provide these services to Company.
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