EdLawConnect Blog

One area to watch for when reviewing Ed-Tech vendor agreements is navigating applicable privacy laws, including the Family Educational Rights and Privacy Act (FERPA; 20 U.S.C. § 1232g), along with California statutes governing student (Education Code § 49060 et seq.) and personnel records (Government Code § 7927.700).  If student records are stored, managed, or retrieved by a third-party vendor, the contract must comply with all provisions set forth in Education Code section 49073.1.  These statutes set expectations for how confidential information is protected and processed by LEAs. They apply to both the LEA and any vendor with which they contract.  In practical terms, LEAs cannot assume vendors automatically understand or comply with these obligations. Ensuring alignment with these laws, and explaining what happens in the event of non-compliance or a breach, must be an intentional and explicit part of the contracting process.

In addition to defining the responsibilities of the parties, a well-written contract should allocate liability if terms are breached.  A weak or incomplete contract can expose a LEA to serious risks, particularly if there is a data breach or misuse of information.  Even if the LEA itself is not a party to the lawsuit, financial and legal responsibility for the claims may be shifted to the LEA via contracting terms. 

Key terms or areas to review when approaching a vendor contract include: (1) Indemnification (who is responsible/liable if a lawsuit is brought against either party); (2) Warranties and Representations (assurances of functionality of the product); (3) Governing Law (should be the state your LEA is located in); (4) Insurance (it is important to have your carrier review contracts with insurance requirements); (5) Confidentiality Obligations (see above); and (6) Limitation of Liability (maximum liabilities in case of breach).  Although other terms and conditions should also be reviewed and considered, these commonly impact LEA liabilities in the Ed-Tech space.  Be prepared to ask questions about these provisions and understand the language in these areas.

It is important to understand what your LEA agrees to before you sign a contract.  There are no guarantees that everything will operate smoothly in any contractual situation.  If something goes wrong, you want to be prepared and have strong language to support your agency’s position. 

If you have any questions about the topic of this blog post, please contact the authors or your regular AALRR counsel.  If you would like to learn more about related topics, please join us at our TechTalk series every 3rd Monday of the month at 8:00 a.m., register online at Tech Talk: Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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