Fiscal Agent Agreement
This Agreement is between NWEA, an Oregon nonprofit public benefit corporation, and Fiscal Agent and is effective as of the Effective Date.
The parties agree as follows:
1. Definitions. In this Agreement, capitalized words have the following meanings:
1.1 Agreement: means this Fiscal Agent Agreement.
1.2 Effective Date: means the date an applicable Fiscal Agent Schedule A is signed.
1.3 EUSA: means the End User Subscription Agreement.
1.4 FERPA: means the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §1232g(a)(4)(A)(ii), 1232g(b)(1), as amended from time to time.
1.5 Fiscal Agent:means an organization indicated on the signature page who acts as fiscal or administrative agent for a network of Subscribers to provide and implement NWEA’s Services for the Subscribers.
1.6 Services: means the Services as defined in the EUSA.
1.7 Student Education Records: means Student Education Records as defined in the EUSA.
1.8 Subscriber: means the school or district or other subscribing entity who has executed an EUSA.
2. Purpose. Subject to the terms and conditions of this Agreement, NWEA shall make available to Subscribers its Services as described in Schedule A.
3. Fiscal Agent Responsibilities. Fiscal Agent shall:
3.1 Pay the fees set forth in an applicable Schedule A within thirty (30) days of receipt of invoice. If Fiscal Agent or any Subscriber overestimates the number of students tested, NWEA is not obligated to refund any fees. If, however, Fiscal Agent or any Subscriber underestimates the number of students tested, NWEA may submit an amended invoice to capture the additional students tested and Fiscal Agent shall pay the variance within thirty (30) days of the amended invoice date;
3.2 Schedule and host introductory activities for the Subscribers;
3.3 Cause each Subscriber to execute the EUSA;
3.4 Immediately notify NWEA in writing of any changes to participating Subscribers;
3.5 Comply with all federal and state student data privacy laws, including FERPA; and
3.6 Notify NWEA immediately when any Subscriber revokes Fiscal Agent's permission to access, maintain, and use its Student Education Records.
4. Implementation. NWEA shall begin implementation of the Services solely upon receipt of executed EUSAs from all participating Subscribers. Fiscal Agent will notify NWEA immediately in the event a Subscriber is added to or removed from participating Subscribers.
5. Publicity. Fiscal Agent consents to NWEA’s and Khan Academy, Inc., a California 501(c)(3) organization, use of and/or references to its name, directly or indirectly, in NWEA’s and Khan Academy's websites, marketing, and training materials.
6. Privacy and Indemnification. In accordance with FERPA and applicable state law, NWEA cannot grant Fiscal Agent access to a Subscriber’s Student Education Records until NWEA receives an executed EUSA with express permission to allow redisclosure of the Student Education Records to Fiscal Agent from such Subscriber. If Fiscal Agent requires access to Student Education Records contained in certain reports generated by the Services in order to coach, guide, and evaluate the Subscribers, then Fiscal Agent will comply with FERPA and applicable state law. Fiscal Agent shall indemnify, defend, and hold harmless NWEA and NWEA’s officers, directors, employees, agents, and representatives, from and against any claims, damages, expenses, judgments, fines, and amounts paid in settlement in connection with any proceeding arising from Fiscal Agent’s access or use of Student Education Records.
7. Termination. This Agreement remains in effect until terminated in accordance with this section. Either party may terminate this Agreement by providing the other party thirty (30) days’ written notice of its intent to terminate for convenience. If Fiscal Agent breaches this Agreement, NWEA may terminate immediately without prior notice to Fiscal Agent and may seek any legal or equitable remedy available against Fiscal Agent for breach of the terms of this Agreement, including without limitation, injunctive relief and specific performance. Upon termination of this Agreement for any reason (i) Fiscal Agent shall promptly notify all Subscribers of such termination so that Subscribers may arrange to fund their continued use of the Services; and (ii) Fiscal Agent shall destroy all Student Education Records within thirty (30) days of termination or expiration of this Agreement. For the avoidance of doubt, all fees paid are non-refundable and all obligations non-cancellable.
8. Limitation.EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL NWEA BE LIABLE FOR ANY DAMAGES OR EXPENSES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES, OR PECUNIARY LOSS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF NWEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, NWEA’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY FISCAL AGENT FOR ITS SUBSCRIBERS’ RIGHT TO USE THE SERVICES IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THIS LIMITATION ALSO APPLIES TO NWEA’S DEVELOPERS AND SUPPLIERS AND IS THE MAXIMUM FOR WHICH THEY AND NWEA ARE COLLECTIVELY RESPONSIBLE.
9. Disclaimer. The only warranty on the Services provided is to a Subscriber pursuant to the EUSA. All other warranties are expressly disclaimed.
10.1 Force Majeure. NWEA shall not be liable for any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its control, including without limitation war, riot, insurrection, civil commotion, terrorist activity, flood, industrial disputes of whatever nature, acts of God, computer crimes, or public enemies of government.
10.2 Waiver and Severability. Waiver of any default or breach under this Agreement by NWEA does not constitute a waiver of any subsequent default or a modification of any other provisions of this Agreement. If any part of this Agreement is held illegal or otherwise unenforceable by a court of competent jurisdiction, the parties intend that the remainder of this Agreement nevertheless remains in full force and effect. Upon a determination that any term or provision is illegal or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible.
10.3 No Third-party Beneficiaries.The parties do not intend to confer any right or remedy on any third party except the Subscribers as provided by the EUSA.
10.4 Survival. The following sections survive any termination or expiration of this agreement or the termination of any license granted under this agreement: 6; 7; 8; 9; and 10.
10.5 Entire Agreement. This Agreement along with Fiscal Agent’s Schedule A contains the entire understanding of the parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement.
10.6 Assignment. Fiscal Agent may not assign this Agreement to any third party without the prior written consent of the NWEA.
10.7 Binding. This Agreement will be binding on the parties and their respective successors, and permitted assigns, and will inure to their benefit.
10.8 Representation of Signatories. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement for its respective party
10.9 Notices. Any notice required under this Agreement shall be in writing and effective when (i) delivered personally against receipt, (ii) deposited in the mail and registered or certified with return receipt requested, postage prepaid, (iii) shipped by a recognized courier service and addressed to either party as designated in this Agreement, (iv) delivered by e-mail or other electronic transmission to an e-mail address designated by the recipient, or when delivered via any of the foregoing at such other address as may be provided by the recipient in accordance with this Section.
Address for Notices to NWEA
121 NW Everett Street
Portland, Oregon 97209
Address for Notices to Fiscal Agent shall be sent to the address on file with NWEA.
10.10 Controlling Law and Venue. This Agreement shall be construed and controlled by the laws of the State of Oregon, U.S.A., without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods, Uniform Commercial Code, and Uniform Computer Information Transactions Act are specifically disclaimed and do not apply to this Agreement. Any litigation arising out of this Agreement must be conducted in courts located in Multnomah County, Oregon.
10.11 Attorney Fees. If any lawsuit is instituted to interpret, enforce, or rescind this Agreement, the prevailing party on a claim may recover, in addition to any other relief awarded, its reasonable attorney fees and other fees, costs, and expenses incurred in connection with the lawsuit, the collection of any award, or the enforcement of any order as determined by a judge.
10.12 Equal Opportunity. NWEA is committed to building a diverse workforce in order to strengthen its organization to meet the needs of its diverse client base. NWEA is an equal opportunity, affirmative action employer and purveyor of services and does not discriminate against its employees, job applicants, or independent contractors on the basis of race, color, national origin, age, religion, gender disability, sexual orientation, veteran status or any other status or consideration protected by local, state and federal laws, except where a bona fide occupational qualification applies. Equal opportunity applies to hiring, promotion, training, compensation and any other organizational action.
10.13 Counterparts. The parties may execute this Agreement in counterparts, each of which is an original, and the counterparts constitute one and the same Agreement. The parties may also deliver and accept facsimile or electronically scanned signatures, which bind a party as if the signature were an original.
10.14 Vendor Status and Independent Contractor. NWEA provides Services within its normal business operations and operates in a competitive environment. The Services constitute a vendor relationship, as defined by OMB Circular A-133 and, therefore, any monies to pay for this Agreement are not subject to the federal audit requirements of OMB Circular A-133. NWEA is an independent contractor, and neither NWEA nor its employees are Fiscal Agent's employees. Nothing contained in this Agreement creates or implies an agency relationship, joint venture, or partnership between the parties.
Last Updated: July 21, 2020