Master Services Agreement Survey & Services

Last Modified: May 05, 2025

This Master Services Agreement (“Master Services Agreement”) is effective as of the effective date of the applicable order form incorporating this Agreement (“Order Form”, and together with the Master Services Agreement, the “Agreement”) and is between XanEdu Publishing, Inc., (DBA Education Elements) including its wholly-owned subsidiary Education Elements, Inc., a Delaware corporation having its principal place of business at 4750 Venture Drive  Suite 400 PMB#20 Ann Arbor, MI 48108-9505  (“Company”), and the customer that is identified on the applicable Order Form (“Customer”). Such Order Form will expressly reference this Master Services Agreement and set forth the applicable Services (as defined below) to be provided by Company in a scope of work attached as an appendix to the Order Form (“Scope of Work”).

Company and Customer desire to have Company (i) perform professional services for Customer (the “Professional Services”) and/or (ii) provide classroom survey instruments, data collection protocols, Company’s proprietary Tripod analytic framework and scoring methodologies, access to Company’s proprietary software platform (the “Tripod Platform”) to view survey results and related information, survey reports and related consulting, training and support services (the “Tripod Survey Services” and together with the Professional Services, the “Services”), subject to and in accordance with the terms and conditions of this Agreement.

1. SERVICES

1.1    Professional Services. Company will use commercially reasonable efforts to perform the Professional Services specified in each Order Form in accordance with the terms and conditions of this Agreement and as set forth in the applicable Order Form.

1.2    Tripod Survey Services.

(i)    Company will use commercially reasonable efforts to provide the Tripod Survey Services, including all related deliverables and documentation specified in the applicable Order Form related to the Tripod Survey Services (the “Deliverables”) in accordance with the descriptions and schedules specified in the applicable Order Form. Notwithstanding the foregoing, Company will not be liable for any failure or delay in the performance of its obligations under this Agreement if prevented from doing so by a cause or causes beyond its reasonable control including, Customer’s failure to perform its obligations under the Agreement.

(ii)    To the extent not already contained in the applicable Order Form, Company and Customer will agree to a work plan that includes an integrated project design plan to include the activities of all the parties relevant to the Tripod Survey Services to be performed by Company (the “Plan”).  Such Plan will provide the dates on which Customer will give Company access to specified Customer resources, information and support from Customer personnel, so as to enable Company to perform the Tripod Survey Services in a timely manner.

1.3    Changes to the Scope of Work.

(i)    Company will inform Customer (email acceptable) as soon as reasonably practicable of any matter that affects the satisfactory and timely performance of the Tripod Survey Services, including any failure by Customer to fulfill its responsibilities under the Scope of Work.  In such event, Company will also notify Customer of the likely impact of such matter, including, impact upon the price and timing for delivery of the Tripod Survey Services, and the parties will negotiate in good faith a change order to the applicable Order Form and Scope of Work (including, as appropriate, an increase in costs and/or extension of deadlines).

(ii)    In the event that Customer requires a change in the Tripod Survey Services or Scope of Work, as soon as reasonably practicable, Customer will provide Company with a written request for such change, and Company will notify Customer of the impact such change will have on the price and timing for the delivery of Tripod Survey Services or other Services.  If Customer wishes to proceed with the change, the parties will, as the case may be, amend the applicable Order Form and Scope of Work to reflect such changes (including, any increase in costs and/or extension of deadlines).

1.4    Access and Use of Tripod Platform. Subject to compliance with the terms and conditions set forth in this Agreement and the terms applicable to the Tripod Platform, as part of providing the Services, Company grants Customer during the term of this Agreement, a non-exclusive, non-transferable, revocable limited right to access and use the Tripod Platform for Customer’s internal business purposes only.

2.1    Access by Minors.  If Customer allows Authorized Users to provide a minor with access to use the Tripod Platform, such Authorized User is required to agree to the User Terms on behalf of themselves and such minor, and acknowledge that the Authorized User understands and agrees that they will be responsible for all uses of the Tripod Platform by that minor whether or not they authorized such uses.

2.2    Accounts. While some aspects of the Tripod Platform are provided to all users, for other aspects, such as administering a Tripod Survey Services survey (“Survey”), an Authorized User must create an account (“Account”) and such Authorized User must be at least 13 years of age. It’s important that Customer and Authorized Users provide Company with accurate, complete and current account information and keep this information up to date. If Customer does not, Company might have to suspend or terminate the applicable Account. In the event of such termination or suspension, Customer will not be responsible for the payment of the services not rendered due to termination or during the suspension period. To protect an Account, Authorized Users must keep the account details and password confidential and notify Company right away of any unauthorized use. Customer is responsible for all activities that occur under the Account of its Authorized Users. If the Authorized User is a student and under the age of 13, such Authorized User must have their parent or legal guardian create the Account for such Authorized User before they can access and use the Tripod Platform.

2.3    Access Codes. In order to access certain features of the Tripod Platform, Authorized Users may need to receive an access code, QR code or other private link or URL (“Access Codes”). Company will have no responsibility to Customer or any other third party for the inability to access or use the Tripod Platform related to such Access Codes and disclaims any liability related thereto.

2.4    Passwords.  Customer is responsible for all actions on the Tripod Platform by Customer’s Authorized Users or under their Tripod Platform password or Account and for ensuring Authorized Users take all reasonable steps to ensure that no unauthorized person will have access to their Tripod Platform password or Account. Without limiting the foregoing: (a) Customer is responsible for all actions taken by individuals that Customer registers or allow to access the Tripod Platform; and (b) it is Customer’s sole responsibility to (i) control the dissemination and use of any login code and password; (ii) authorize, monitor, and control access to and use of Customer’s Authorized Users’ account and password; (iii) promptly inform Company of any need to deactivate a password. Customer grants Company and all other persons or entities involved in the operation of the Tripod Platform and the Services the right to transmit, monitor, retrieve, store, and use any information recorded and/or stored in Accounts in connection with the operation of the Tripod Platform and the Services.

2.5    Limits on Access. Company may change, suspend, or discontinue any aspect of the Tripod Platform, impose limits on certain features, or restrict or prohibit access to parts or all of the Tripod Platform at any time, all without notice or liability. If the Customer does not agree with such modifications, then Customer may choose to terminate the Agreement without any penalty. Customer agrees to be bound by any application-, tool- or content-specific rules published within the Tripod Platform.

2.6    Limited Rights. You expressly agree that the content of the Tripod Platform may be viewed and accessed only by Customer, Customer’s students (if applicable and as needed to participate in the survey), the specific school authorized to access the Tripod Platform by Customer (each, a “School”), and the specific district authorized to access the Tripod Platform by Customer (each, a “District”).

2.7    Suspension or Termination.  Company may suspend or terminate an Authorized User’s access to and use of the Tripod Platform, including suspending access to or terminating their Account, at Company’s sole discretion, at any time and without notice. An Authorized User, or their parent or legal guardian who has agreed to the TOS on their behalf if the Authorized User is under 13 years old, may cancel their Account at any time by sending us an email at help@tripoded.com.  Once an Authorized User’s membership terminates for any reason, such Authorized User will not be permitted to use the Tripod Platform.

2.8    Acceptable Usage Rules. As a condition of Customer and its Authorized Users’ use of and access to the Tripod Platform and the Services, Customer will not at any time and will not permit any person (including, Authorized Users) to, directly or indirectly: (i) copy, modify, adapt or create derivative works of the Tripod Platform, or any of the software in whole or in part; (ii) attempt to reverse engineer, decompile, reverse assemble, or discover any of the software (source code or object code) used to provide the Tripod Platform, including software that creates or generates web pages, surveys or any software or other products or processes accessible through the Tripod Platform; (iii) attempt to access or search the Tripod Materials, or download content from the Tripod Platform using any automated system, including, any engine, software, tool, agent, device, mechanism, spider, robot (or "bot"), crawlers, data mining tools, cheat utility, scraper or offline reader other than the software and/or search agents provided by Company; (iv) interfere with, or attempt to interfere with, the access of any user, host or network, including distributing any virus, time bomb, trap door, or other harmful or disruptive computer code, mechanism or program, or overloading, flooding, spamming, or mail-bombing the Tripod Platform; (v) cover or obscure any notice, banner, legend or warning contained on the Tripod Platform; (vi) interfere with, avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any security feature of the Tripod Platform or any feature that restricts or enforces limitations on use of or access to the Tripod Platform; (vii) use, display, mirror or frame the Tripod Platform or any individual element within the Tripod Platform, Company’s or the Tripod name, any Company or Tripod trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent, or sell the Tripod Platform or any part thereof including user Accounts and access to them in exchange for anything of value or for any commercial purpose or for the benefit of any third party or in any manner not permitted by the Agreement or User Terms; (viii) access, tamper with, or use non-public areas of the Tripod Platform, Company’s computer systems, or the technical delivery systems of Company’s providers; (ix) attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures; (x) violate any applicable law, including any applicable export laws; (xi) harvest or otherwise collect or store information about others, including email addresses or any other personally identifiable information from the Tripod Platform; (xii) infringe or violate the rights of any other party, including any intellectual property rights or rights of privacy or publicity; (xiii) deliberately mislead anyone as to Customer or any Authorized User’s identity or impersonate any person or entity; (xiv) allow another person or entity to use an Authorized User’s identity in order to access the Tripod Platform; (xv) inquire as to any person’s survey responses or otherwise solicit information in an attempt to ascertain a person’s survey response; and Customer will maintain the anonymity of student survey responses and avoid actions that suggest that Customer may learn student responses, except to the extent that Customer is District whose agreement with Company otherwise contemplates (for legitimate research and evaluative purposes, all in compliance with applicable law); (xvi) engage in any conduct deemed by Company to be in conflict with the spirit or intent of the Tripod Platform or the Services, including by restricting another authorized user from using or enjoying the Tripod Platform or the Services, or exposing Company or another to any liability or detriment of any kind; (xvii) violate the terms set forth in the “Administrative Guidelines” and the “Understanding Your Report” documents provided by Company; (xviii) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; or (xix) encourage or enable any other individual to do any of the foregoing.

2.9    Child Online Protection Act Notification. Pursuant to 47 U.S.C. § 230(d) as amended, Company hereby provides notice that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist Customer and its Authorized Users in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), GetNetWise (http://kids.getnetwise.org/), and OnGuardOnline (http://www.onguardonline.com/). Please note that Company is not affiliated with the above listed sites, nor is the above intended as an endorsement of any of the products or services listed on such sites.

3. CUSTOMER OBLIGATIONS

3.1    Customer Responsibilities.  In connection with each Order Form, Customer will perform Customer’s duties and tasks under this Agreement, and such other duties and tasks as may be reasonably required to permit Company to perform the Services, including promptly granting approvals and otherwise make necessary decisions with respect to the Services provided by Company.

3.2    Customer Materials. Customer will make available to Company, promptly and without charge, any data, information and any other materials required by Company to perform the Services, including, but not limited to, any data, information or materials specifically identified in an Order Form (collectively, “Customer Materials”).  Customer will be responsible for ensuring that all such Customer Materials are accurate and complete. All Customer Materials provided by Customer to Company will be reliable, adequate and accurate for the purpose of performing Company’s obligations pursuant to this Agreement, and Company will not be required to independently test, verify or audit any information included in the Customer Materials.

3.3    User Terms. Subject to compliance with the terms and conditions of this Agreement and the terms applicable to the Tripod Platform, as part of receiving the Tripod Survey Services, Customer may invite and authorize Customer’s employees, consultants, agents, representatives (“Authorized Users”) to sign up for an account on the Tripod Platform in order to use, access and administer surveys in connection with the Tripod Survey Services. Customer acknowledges and agrees that Customer’s Authorized Users’ use of the Tripod Platform is subject to Company’s End User Terms of Use (“User Terms[MOU1] ”) and privacy policy (“Privacy Policy[MOU2] [MOU3] ”), and that Customer is directly liable for and responsible to Company for ensuring that Customer’s Authorized Users agree to, and comply with, the User Terms and Privacy Policy.

3.4    Additional Obligations of Schools and Districts. Customer is responsible for disseminating, or directing any School to disseminate, parental/guardian consent forms to parents and legal guardians of potential student users, for confirming receipt of valid consent forms for each child before granting a parent or legal guardian and/or that parent’s (or legal guardian’s) child an Access Code for the Tripod Platform or Tripod Survey Services, and for retaining such consent forms on file. The School must provide parent/legal guardian users with the option to agree to the collection and use of such parent’s (or legal guardian’s) child’s personal information without agreeing to the disclosure of the information to third parties. If a parent or legal guardian user does not consent or rescinds such consent, the School will immediately notify Company to discontinue that child’s access to the Tripod Platform and the Tripod Survey Service and ensure that such child’s information is no longer accessible through the Tripod Platform and the Tripod Survey Services. In any case, however, Company may provide any collected information to third parties who use it to provide support for the internal operations of Company.

3.5    Third Party Sites and Products. The Tripod Platform may allow Customer and its Authorized Users to access third-party websites or other resources. Company provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. Links to such websites or resources do not imply any endorsement by Company of such websites or resources or the content, products, or services available from such websites or resources. Customer acknowledges it has sole responsibility for and assume all risk arising from, use of any such third-party resources.

4.1    Fees and Expenses.  For Company’s performance of Services, Customer will pay Company the Services fees calculated in accordance with the terms set forth in the applicable Order Form (“Fees”). Customer will reimburse Company for all expenses specified in an Order Form and all other reasonable and customary expenses incurred by Company in performing the Services; provided that, all such additional expenses are approved by Customer in writing in advance.

4.2    Payment Terms.  All Fees and other amounts set forth in an Order Form are stated in and are payable in U.S. Dollars.  Company will invoice Customer as outlined in the applicable Order Form and will invoice Customer for expenses to be reimbursed on a monthly basis.  Unless otherwise specified in the applicable Order Form, Customer will pay each such invoice no later than thirty (30) days after Customer’s receipt thereof.  Any invoice not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower.

4.3    Taxes.  All fees, expenses and other amounts payable to Company hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Company’s net income). If Company has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will promptly reimburse Company for any such amounts that Company pays on Customer’s behalf.

5.1    Definitions. As used herein:

(i)    “Intellectual Property Rights” means all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights.

(ii)    “Company Materials” means (a) all proprietary works, methodologies, specifications, documentation, techniques, utilities, processes, inventions, devices, software programs, tools  and materials of any kind used or developed by Company or its personnel, (b) the Tripod Materials, (c) knowledge, skills, experience, ideas, concepts, know-how and generic techniques that are learned, developed or improved by or on behalf of Company in the course of performing its obligations hereunder, (d) Deliverables and Aggregate Data, and (e) any and all Intellectual Property Rights developed in connection with performing Services.

(iii)    “Tripod Materials” means (a) the Tripod Platform and the underlying software provided in conjunction with the Tripod Platform and Tripod Survey Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Tripod Platform and Tripod Survey Services, (b) all proprietary features and aspects of the Tripod Survey Services, including the 7Cs framework and its overall methodology, survey indices, survey instruments, reporting structure and Tripod trademark, (c) all visual content, text (including exam and survey questions), the arrangement, sequence, structure, and organization of the survey items and questions used in providing the Tripod Survey Services, (d) all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and (e) all associated Intellectual Property Rights in the foregoing.

5.2    Ownership of Company Materials and Reservation of Rights. Customer acknowledges and agrees that, as between Customer and Company, Company exclusively owns all right title and interest in and to Company Materials, including all Intellectual Property Rights therein whether such Intellectual Property Rights are registered or not.  Subject to the limited rights expressly granted hereunder, Company reserves and, as between the parties, will solely own, the Company Materials and all rights, title and interest in and to the Company Materials. Customer will have no rights in any Company Materials (whether by implication, estoppel, exhaustion or otherwise), except as expressly set forth herein.

5.3    Use of Deliverables. Unless otherwise specified in the applicable Order Form, Customer may use and make a reasonable number of copies of the Deliverables furnished to Customer under an Order Form for its internal business purposes only.

5.4    Customer Materials. As between Company and Customer, Customer exclusively owns all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Customer hereby grants to Company, during the term of this Agreement, a non-exclusive, worldwide, royalty-free right and license to use, copy, store, transmit, modify, create derivative works of and display Customer Materials (i) solely to the extent necessary to provide the Services or to exercise Company’s rights hereunder; and (ii) for the purposes of generating de-identified and aggregated data in any form or medium which is not attributable to Customer (such aggregated data, the “Aggregate Data”) which Company may use to support, improve and provide the products, services and technologies of Company.

5.5    Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit Company’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that, Company complies with its obligations under this Agreement with respect to Customer Confidential Information.

5.6    Feedback. From time to time, Customer or its employees, contractors, or representatives may provide Company with suggestions, comments, feedback or the like with regard to the Tripod Platform or the Services (collectively, “Feedback”).  Customer hereby grants Company a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit in any manner all Feedback in connection with Company’s business purposes, including the testing, development, maintenance and improvement of the Tripod Platform and the Services and Company’s other products and services.

5.7    Survey Results. Subject to Company’s compliance with Section 6, Company will have the right to publish survey data and information, including demographic information, that results from the Tripod Survey Services in a de-identified form that is not attributable to Customer (district, school and teacher) or any individual student respondent.

6.1    Confidential Information.  “Confidential Information” means: (i) Customer Materials (in the case of Customer) and Company Materials (in the case of Company); (ii) any business or technical information that a party (the “Disclosing Party”) discloses or makes available to the other party (the “Receiving Party”) and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the Receiving Party knows or has reason to know should be treated as confidential or proprietary.

6.2    Exclusions.  Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iv) is rightfully received by the Receiving Party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure.

6.3    Use and Disclosure Restrictions.  Each party, in their capacity as the Receiving Party, will: (i) not use any Confidential Information of the Disclosing Party except as necessary for its performance or enforcement of this Agreement, (ii) maintain Confidential Information of the Disclosing Party in strict confidence, (iii) use at least the same degree of care in maintaining the confidentiality of Confidential Information of the Disclosing Party as it uses in maintaining the confidentiality of its own Confidential Information, but in no event less than a reasonable degree of care, (iv) not disclose any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees, contractors and agents who have a bone fide need to access such Confidential Information in the performance of this Agreement and who have agreed in writing to confidentiality obligations and use restrictions at least as restrictive as those in this Agreement.

6.4    Permitted Disclosures. The foregoing obligations will not restrict either party, as the Receiving Party, from disclosing Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the Receiving Party required to make such a disclosure gives reasonable notice to the Disclosing Party to contest such order or requirement; (ii) on a confidential basis to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party for due diligence purposes. To the extent Customer is a government agency subject to the Freedom of Information Act, 5 U.S.C. 552, or similar state public records laws, Company represents, and the Customer acknowledges, that Company’s Confidential Information includes trade secrets or other data exempted from release due to competitive harm or based on the proprietary nature of the data, provided that nothing in the confidentiality obligations in this Section 6 restricts Customer’s employees from lawfully reporting waste, fraud, or abuse related to the performance of a government contract.

7. WARRANTY

7.1    Representations and Warranties from Customer. If Customer provides a student with access to the Tripod Platform or the Services, Customer hereby represents and warrants that Customer is authorized by such student’s parents or guardians and has obtained all parental consents and permissions in connection with the Tripod Platform and the Services required by federal, state, and local law (and all regulations and rules thereunder), including the Children’s Online Privacy Protection Act and the Family Educational Rights and Privacy Act, which may include by limiting access to the Tripod Platform and the Services to those student users from whom the School (or District or teacher) has received valid consent forms and complying with all parental requests (including request of legal guardians) regarding the collection, use and disclosure of such parent’s (or legal guardian’s) child’s information.

7.2    Professional Services Warranty.  Company warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards.  This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services.  As Customer’s sole and exclusive remedy and Company’s entire liability for any breach of the foregoing warranty, Company will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Professional Services.

7.3    Warranty Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND COMPANY MATERIALS ARE PROVIDED ON AN “AS-IS” BASIS AND COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR ANY OTHER PARTY REGARDING THE SERVICES, COMPANY MATERIALS OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE TRIPOD PLATFORM AND TRIPOD SURVEY SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

8.1    Mutual Indemnification.   Each party (for purposes of this Paragraph, the party of the  first part shall be referred to as the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (for purposes of this Paragraph, the party of the second part shall be referred to as the “Indemnified Party”) from and against: (a) any and all liability arising out of the Indemnifying Party's failure to comply with the terms of this Agreement, and any injury, loss, claims, or damages arising from the negligent or intentional operations, acts, or omissions of the Indemnifying Party relating to or arising out of such party's performance of its obligations under this Agreement; and (b) any and all costs and expenses, including reasonable legal expenses, incurred by or on behalf of the Indemnified Party in connection with the defense of such claims.  Notwithstanding the foregoing, no party shall be liable to any other party hereunder for any claim covered by insurance, except to the extent of any deductible and to the extent that the liability of such party exceeds the amount of such insurance coverage.  

8.2    [Intentionally Omitted]

8.3    Procedure. The foregoing indemnity obligations are conditioned on the party seeking defense and indemnity (the “Indemnified Party”) notifying the indemnifying party (the “Indemnifying Party”) promptly in writing of any claim for which indemnity is being sought (provided that failure to so notify does not relieve the Indemnifying Party of its obligations except to the extent it is prejudiced by such failure). The Indemnified Party will give the Indemnifying Party sole control of the defense any claim for which the Indemnifying Party is responsible hereunder, and any related settlement negotiations, provided that the Indemnifying Party may not settle any claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense and/or settlement of a claim hereunder and, at the Indemnifying Party’s request and expense, assisting in such defense. The Indemnified Party may participate in the defense of claims at its own cost and with its own choice of counsel, or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party. Customer’s obligation in this Section 8.3 to provide Company control over the defense and settlement of any indemnifiable claim is subject to the provisions of 28 U.S.C. 516, where Customer is a federal government entity, or the applicable state statute governing control of litigation if Customer is a state or local government entity. Customer must make every effort to permit Company to participate fully in the defense or settlement of any such claim.

11.1    Term.  This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for the term specified in the applicable Order Form.

11.2    Termination.  Either party may terminate this Agreement if the other party breaches any material term of this Agreement or Order Form and fails to cure such breach within thirty (30) days after receipt of written notice thereof.

11.3    Non-Appropriation. If the term of this Agreement is greater than one year, Company acknowledges and agrees that the Agreement will be subject to approval in accordance with Customer’s standard budget approval process. In the event that funds for this Agreement are not appropriated at the end of an applicable budget period, Customer may terminate this Agreement with thirty (30) days prior written notice.

11.4    Effect of Termination.  Upon the expiration or termination of this Agreement, and except as otherwise set forth in this Agreement: (i) Customer and its Authorized Users will immediately cease use of the Tripod Platform; (ii) Company will promptly return to Customer all Customer Materials; (iii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (iv) Customer will, within thirty (30) days after receipt of Company’s invoice, pay all accrued and unpaid fees and expenses. However, in the event of early termination, payment obligations under this Agreement shall be pro-rated as of the effective date of such termination. Company shall reimburse Customer for any and all payments that relate to services that will not be earned by Company between the date of such termination and the expiration of the Term.

11.5    Survival.  The rights and obligations of the parties contained in Sections 2.8, 5, 6, 7, 8, 9, 10, 11, and 12 will survive the expiration or termination of this Agreement.

12. GENERAL

12.1    Relationship of the Parties.  Company is performing Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and Company or any Company personnel.  Neither party has the authority to bind the other by contract or otherwise.  Company acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees.  Company is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Company and its personnel and the performance of Services by such personnel.

12.2    Assignment.  Neither party may assign this Agreement without the other party’s  prior written consent, except that Company may assign this Agreement, without Customer’s consent, but with notice to Customer, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, the sale of all or substantially all of Company’s assets, or the sale of that portion of Company’s business to which this Agreement relates, subject to the assignees acceptance of the terms of this agreement.  Any attempted assignment without such consent will be null and of no effect. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.

12.3    No Election of Remedies.  Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

12.4    Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware excluding its body of law controlling conflict of laws.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in  New Castle County, Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.

12.5    Severability.  If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

12.6    Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.

12.7    Waiver.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

12.8    Entire Agreement.  This Master Services Agreement, together with the Order Form, and any attachments and exhibits, constitutes the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of any conflict or inconsistency between an Order Form and this Agreement, the Order Form will prevail.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.

12.9    Force Majeure.  Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God, pandemic, epidemic or governmental action. Customer shall have no obligation to pay for services not rendered due to a Force Majeure event, shall have the right to terminate the Agreement immediately upon written notice to Company of any Force Majeure event, and shall not be liable for payment of undelivered services  under this Agreement upon such termination.

12.10    Interpretation. Captions of the articles, sections and subsections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement and will not limit or affect the meaning or construction of the terms and conditions of this Agreement. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Words importing the singular include the plural and vice versa.

12.11    Compliance with Laws. Each party will comply with all laws, regulations and ordinances applicable to such party in the exercise of its rights and obligations under this Agreement.