SANDI Terms Of Use

These SANDI Terms of Use (“Terms of Use”) create a binding contract between you as a Customer, your Authorized Users and Lakeshore Learning Materials, LLC (“Lakeshore”), governing access to and use of the Services as provided on the Student Annual Needs Determination Inventory online platform (“SANDI”). Lakeshore and Customer are each a “Party” and, collectively, the “Parties” to these Terms of Use.

If you are not a Customer or Authorized User, you are prohibited from using the Services and must cease all activity on SANDI.

1. Definitions.

1. “Applicable Law” means applicable local, state and federal laws and regulations, including but not limited to Data Privacy Law.
2. “Authorized User” means Customer’s teachers and administrators or other personnel who are authorized by Customer to access and use SANDI under the rights granted to Customer pursuant to a Subscription Agreement and these Terms of Use.
3. “Customer” means any individual or entity that has executed a Subscription Agreement with Lakeshore to use the Services.

4. “Customer Data” means (i) information, data and other content, including as it relates to Customer’s students and Authorized Users, in any form or medium, that is submitted, posted or otherwise transmitted by or on behalf of Customer in connection with the Services, and (ii) Assessments generated by the Services. For the avoidance of doubt, Customer Data does not include Aggregated Statistics.
5. “Customer Personnel” means any employee, contractor, agent or representative of Customer and shall also include Authorized Users.
6. “Data Privacy Law” means the Family Educational Rights and Privacy Act and other data protection privacy laws and regulations.
7. “Documentation” means any user manuals, handbooks, protocols and guides for use of the Services, either electronically or in hard copy form.
8. “SANDI Data and Materials” means SANDI, the Services and Documentation.
9. “Services” means the provision, availability and operation of SANDI and all its content, materials, tools and related technologies, and the generating of assessments therefrom (each, an “Assessment”), including but not limited to the Formative Assessment of Standards Tasks (FAST).
10. “Unauthorized Party” means any third party or Customer Personnel that are not Authorized Users.

2. Acceptance.

1. By executing a Subscription Agreement, Customer agrees to these Terms of Use and Customer acknowledges and agrees that it shall only use the Services pursuant to these Terms of Use, the Subscription Agreement and Applicable Law.
2. Customer shall ensure Customer Personnel comply with these Terms of Use and be liable for such compliance.
3. Customer’s use of the Services will be subject to the most current version of these Terms of Use at the time of such use.

3. Subscription Agreement. Customer shall be provided with individual subscriptions to access SANDI and use the Services for each student expected to receive an Assessment (a “Subscription”) for the duration of the stated term (the “Subscription Period”) pursuant to any purchase order, quote or similar agreement agreed to by Lakeshore and Customer (a “Subscription Agreement”). Customer shall have access to the Services for the duration of the Subscription Period. All Assessments generated by the Services are included in Subscriptions.
4. Precedence.

1. To the extent there is a conflict between these Terms of Use and a Subscription Agreement, the Subscription Agreement shall control.
2. Notwithstanding the foregoing, Sections 5, 6, 9, 10, 11, 13(a), 14, 15(a) and 15(c) of these Terms of Use shall control over the terms of any Subscription Agreement, including to the extent included under Section 21(b) (Survival) herein, unless otherwise agreed to by the Parties.

5. Licenses. Subject to these Terms of Use, Lakeshore hereby grants Customer the following license pursuant to Customer’s Subscription Agreement and these Terms of Use (collectively, the “Agreement”):

1. A non-exclusive, non-transferable, non-licensable and revocable right to access and use the Services and Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Services.

6. Access and Use.

1. Upon execution of a Subscription Agreement by the Parties, Lakeshore shall provide Authorized Users access to the Services through SANDI’s secured portals (the “Secured Portals”).
2. Customer shall:

1. Use the Services pursuant to the terms of the Agreement;
2. Use the Secured Portals to create log-in credentials (the “Credentials”) and to transmit Customer Data;
3. Comply with Applicable Law when using the Services, including but not limited to obtaining any consent required to disclose or transmit personal data or educational data or similar terms as defined under Applicable Law;
4. Be responsible for the accuracy and quality of Customer Data;
5. Use commercially reasonable efforts to prevent access to SANDI or use of the Services by an Unauthorized Party, provided that students may do so under the direct and constant supervision of an Authorized User to the extent necessary to use the Services;
6. Promptly notify Lakeshore upon the belief that (A) an Authorized User has submitted Customer Data in violation of Applicable Law, (B) the Credentials of an Authorized User have been lost, stolen or made available to an Unauthorized Party, or (C) an Unauthorized Party has accessed SANDI; and
7. Promptly notify Lakeshore whenever an Authorized User is no longer authorized to access and use SANDI for any reason whatsoever.

3. Customer shall not:

1. Use the Services for any purposes beyond the scope of the access granted pursuant to the Agreement, including but not limited to the development, marketing or sale of products or services that are potentially competitive with SANDI and the Services;
2. Use the Services to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material that violates third-party rights;  
3. Interfere with or disrupt the integrity or performance of SANDI or the Services;
4. Directly or indirectly (A) copy, modify or create derivative works of SANDI Data and Materials, in whole or in part; (B) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the SANDI Data and Materials; (C) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to any software component of SANDI or the Services, in whole or in part; (D) remove any proprietary notices from SANDI Data and Materials; or (E) use SANDI Data and Materials in any manner or for any purpose that violates any Applicable Law; or
5. Attempt to access SANDI after expiration of the Subscription Period or termination of the Agreement.

7. Availability of the Services.

1. Lakeshore shall use commercially reasonable efforts to ensure the Services are available 24 hours a day, 7 days a week during the Subscription Period except for:

1. Downtime in connection with required maintenance, including as necessary to regularly ensure the operational capabilities and security of SANDI; or
2. Disruptions caused by (A) government regulations or orders, (B) system capacity limitations or limitations imposed by or due to failures of an underlying communications carrier or Internet provider, or (C) as provided under Section 21(d) (Force Majeure) herein.

2. Lakeshore shall provide reasonable notice prior to any required maintenance unless such maintenance must be commenced before prior notice can be provided.

8. Support. Authorized Users have access to the secured SANDI message board on the SANDI home page. Messages posted there will receive a response within one business day.
9. Removal of Customer Data. If Lakeshore has a reasonable belief that Customer Data, in whole or in part, may violate Applicable Law, Lakeshore shall have the right but not the obligation to securely delete or return such Customer Data at Customer’s reasonable expense.

10. Aggregated Statistics. Lakeshore may monitor Customer’s use of the Services and collect and compile data and information related to such use in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (the “Aggregated Statistics”). As between Lakeshore and Customer, all rights, title and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Lakeshore. Customer acknowledges that Lakeshore may compile Aggregated Statistics based on Customer Data transmitted into the Services. Customer agrees that Lakeshore may use Aggregated Statistics to the extent and in the manner permitted under Applicable Law, provided that such Aggregated Statistics do not identify Customer, its students or Authorized Users, or Customer’s Confidential Information.

11. Links to Third Parties’ Sites and Third-Party Integrations. The Services may provide links to third-party websites or resources outside of SANDI for informational purposes only. Lakeshore may also provide links to third-party integrations. Third-party integrations are websites or platforms that synchronize with SANDI to provide additional functionality, tools or services. If Customer accesses a third-party website, resource or integration (collectively, the “Third-Party Tools”), Customer does so at its own risk and Lakeshore is not responsible for Third-Party Tools, including but not limited to the accuracy or reliability of any information, data, opinions, advice or statements; the quality of any available products or services; or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods or services available on or through a Third-Party Tool. These links are provided merely as a convenience, and the inclusion of such links does not imply that Lakeshore endorses or accepts any responsibility for the content or uses of Third-Party Tools.
12. Confidentiality.

1. Either Party may disclose or make available to the other Party confidential information, including but not limited to business affairs, products, intellectual property, trade secrets or other proprietary information and third-party confidential information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information includes but is not limited to SANDI Data and Materials and Customer Data.
2. Confidential Information does not include information that, at the time of disclosure, is (a) in the public domain, (b) is already in the lawful possession of the receiving Party at the time of disclosure, (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party, or (d) independently developed by the receiving Party.
3. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s personnel who have a need to know the Confidential Information that is necessary for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure shall first give written notice to the other Party, to the extent legally permitted, providing a reasonable amount of time to contest the disclosure or obtain a protective order; or (ii) to establish a Party’s rights under the Agreement, including to make required court filings.
4. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and, upon request, certify in writing to the disclosing Party that such Confidential Information has been destroyed.
5. Each Party’s obligations of nondisclosure with regard to Confidential Information shall expire five years from the date first disclosed to the receiving Party; provided, however, that nondisclosure obligations with respect to Confidential Information that constitutes a trade secret (as determined under Applicable Law) will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.

13. Ownership & Intellectual Property.

1. SANDI Data and Materials. Customer acknowledges that, as between Customer and Lakeshore, Lakeshore and its licensors own all rights, title and interest in and to the SANDI Data and Materials, whether or not eligible for legal protection under intellectual property laws, including but not limited to methodologies; collection, tabulation and analysis of data; computer programming methods; source code and object code; and website and database design.

7. Customer Data. Lakeshore acknowledges that, as between Lakeshore and Customer, Customer owns all rights, title and interest in and to the Customer Data, whether or not eligible for legal protection under intellectual property laws.

14. Feedback. If Customer or Customer Personnel sends or transmits any communications or materials to Lakeshore by mail, email, telephone or otherwise, suggesting or recommending changes to SANDI Data and Materials, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions or the like (“Feedback”), Lakeshore is free to use such Feedback and any ideas, know-how, concepts, techniques or other intellectual property rights contained therein, to make derivative works or otherwise exploit, without any attribution or compensation to any party, although Lakeshore is not required to use any Feedback.

15. Privacy Policy & Security.

1. By accessing and using SANDI, Customer and Customer Personnel consent to collection, use and disclosure of information as described in the SANDI Privacy Policy (https://sandi.forallschools.com/privacy/) and any subsequent revisions thereto, that is incorporated by reference into these Terms of Use.
2. Lakeshore shall maintain appropriate administrative, technical and physical safeguards in accordance with industry best practices and Applicable Law to protect the security, confidentiality and integrity of Customer Data in its custody, including but not limited to providing Customer with Secured Portals to transmit Customer Data.
3. Lakeshore shall not be liable where the security of Customer Data is compromised due to a breach of Section 6 (Access & Use) herein by Customer or Customer Personnel.

16. Subcontractors. Lakeshore may use third-party subcontractors to provide the Services to Customer (the “Subcontractors”); provided, however, that Lakeshore shall enter into a written agreement committing such Subcontractor to confidentiality and security obligations no less stringent than those imposed on Lakeshore under these Terms of Use. Lakeshore shall be liable for acts and omissions of Subcontractors in connection with providing the Services under the Agreement.
17. Disclaimer of Warranties. THESE SERVICES ARE PROVIDED “AS IS” AND LAKESHORE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. LAKESHORE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. LAKESHORE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE.

18. Indemnification.

4. Mutual Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party (the “Indemnified Party”) from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees), claims, demands, suits, actions, proceedings or judgments (“Losses”) resulting from a claim by a third party (a “Third-Party Claim”) alleging a breach by the Indemnifying Party of its Confidentiality obligations under Section 12 (Confidentiality).
5. Lakeshore Indemnification.

3. Lakeshore shall indemnify, defend and hold harmless Customer from and against any and all Losses resulting from a Third-Party Claim alleging the Services, or any use of the Services in accordance with the Agreement, infringe or misappropriate intellectual property rights; provided, however, that Customer shall not be entitled to such indemnification from Lakeshore to the extent the alleged infringement arises from Customer or Customer Personnel: (A) use of the Services in combination with data, software, hardware, equipment or technology not provided by Lakeshore or authorized by Lakeshore in writing; or (B) modifications to the Services not made by Lakeshore.
4. If such Third-Party Claim is made or appears possible, Customer agrees to permit Lakeshore, at Lakeshore’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, in which case the modification or replacement shall in no way degrade the Services, or (B) obtain the right for Customer to continue use. If Lakeshore determines that neither alternative is reasonably available, Lakeshore may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund any Fees paid in advance for Services not yet provided. Such refund shall be paid within thirty (30) days of written notice by Customer.

6. Customer Indemnification. Customer shall indemnify, defend and hold harmless Lakeshore from and against any and all Losses resulting from a Third-Party Claim relating to or arising from Customer’s breach of its Access and Use obligations under Section 6 herein.
7. Notice and Defense of Third-Party Claim. Indemnity obligations shall be subject to the Indemnified Party giving the Indemnifying Party prompt written notice of any Third-Party Claim; however, failure or delay in giving notice does not diminish indemnity obligations unless, and then only to the extent that, the Indemnifying Party’s ability to defend the claim is adversely affected thereby. The Indemnifying Party shall promptly confirm it will assume control and direct the defense or settlement of the Third-Party Claim. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance in connection with the defense or settlement of the Third-Party Claim, at the Indemnifying Party’s sole expense. Any settlement that requires an admission or payment by the Indemnified Party is subject to its written approval. The Indemnified Party shall have the right to retain counsel for itself to defend a Third-Party Claim at its sole expense; provided, however, that the Indemnifying Party shall bear the reasonable fees and expenses of such counsel if counsel for either party reasonably determines that a conflict exists that would prevent joint representation.

19. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO LAKESHORE UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

20. Termination.

8. Termination Rights.

5. Lakeshore may terminate the Agreement, including access to SANDI, if Customer (A) fails to pay any undisputed amount when due, and such failure continues more than 30 (thirty) days after Lakeshore’s delivery of written notice thereof; or (B) breaches the terms of the Agreement, effective immediately upon written notice from Lakeshore.

6. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

9. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services. No expiration or termination will affect Customer’s obligation to pay all undisputed Fees for the Services, or any portion thereof, that have been provided before such expiration or termination, or entitle Customer to any refund for such Services provided.

21. Miscellaneous.

10. Entire Agreement. The Agreement constitutes the sole and entire agreement of the Parties with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
11. Survival. This Section and 6(c)(v), 10, 12, 13, 17, 18, 19, 21(g) and 21(i) shall survive any termination or expiration of the Agreement. No other provisions of this Agreement survive the expiration or earlier termination of the Agreement.

12. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be sent by email to legal@lakeshorelearning.com, with a duplicate copy sent via registered mail (return receipt requested) to: SANDI c/o Lakeshore Learning Materials, LLC, Attention: Legal Department, 2695 E. Dominguez Street, Carson, CA 90895. Any notices under the Agreement that are sent to you shall be sent via email to the current named account owner of your Subscriptions. You are responsible for maintaining the accuracy of the email address and other contact information of your named account owner and providing Lakeshore with notice of any change to the contact information.

13. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

14. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Use, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms of Use will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

15. Severability. If any provision of these Terms of Use is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction.

16. Governing Law. These Terms of Use are governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to these Terms of Use or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Los Angeles County, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

17. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve that Party of any of its obligations hereunder. These Terms of Use are binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

18. Equitable Relief. The Parties acknowledge and agree that a Party’s breach or threatened breach of confidentiality obligations under 12 or a violation or potential violation of Data Privacy Law or intellectual property rights would cause irreparable harm to the affected Party for which monetary damages would not be an adequate remedy and, in the event of such breach or violation, the affected Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.