eSped Master Services Agreement

This Master Services Agreement provides the terms and conditions of purchase between eSped.com, Inc., a Frontline Technologies Group, LLC company (“eSped”), and the purchasing entity listed on the Order Form (“Client”).

As used in this Master Services Agreement: (a) The term Order Form means a document agreed to and executed by each of eSped and Client that references this Master Services Agreement and identifies certain software applications or certain services to be provided to Client; (b) the term Statement of Work (“SOW”) means a document agreed to and executed by each of eSped and Client that references this Master Services Agreement and identifies the particular project details including, without limitation, the services to be provided and project responsibilities;(c) the term Subscription Software shall mean the Software as a Service (“SaaS”) including all embedded applications and any modifications/updates to the software which is offered to the Client on a subscription basis and set forth on the Order Form; and (d) the term Professional Services or Services means the services set forth on the Order Form and/or Statement of Work including, without limitation, training, implementation, consulting and project management. All Order Forms and Statements of Work shall be deemed part of and subject to this Master Services Agreement. Any preprinted or other terms contained on Client’s purchase order or ordering documentation shall not apply to this Agreement and are specifically rejected by eSped. The term “Agreement” means this Master Services Agreement, together with all Order Forms, Statements of Work and any other document appended to the Order Form.

Each party states that the individual signing this Agreement has the authority to bind it to this Agreement. To place orders subject to this Agreement, at least one Order Form must be incorporated into this Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Subscription Software applications identified on the applicable Order Forms and the Professional Services and other services identified on the applicable Order Forms or Statements of Work (collectively, “Services”), and any other software, products or services provided by eSped and/or its affiliates pursuant to this Agreement. For the avoidance of doubt, this Agreement supersedes any and all prior oral or written communications, proposals, RFPs, contracts, and agreements (including all prior license and similar agreements) regarding the Subscription Software and Services, and by entering into this Agreement the parties terminate all such agreements. In the event of a conflict between the provisions of the Terms and Conditions and the provisions of any Statement of Work, Order Form, or Order Form Terms and Conditions, the provisions of the Statement of Work, Order Form, or Order Form Terms and Conditions, as applicable, shall govern, but only with respect to the Software and Services stated in that particular Statement of Work, Order Form, or Order Form Terms and Conditions.

In consideration of the foregoing and the covenants the parties agree to the following:

1. Subscription Software and Services
   1. Subscription Software. Subject to the terms and conditions of this Agreement, eSped grants Client, during the Term, a non-exclusive, non-transferable right to access and use the Subscription Software (or license to install and use the Subscription Software if hosted by the Client), and the technical manuals, instructions, training materials, and other documentation that accompany the Subscription Software, as amended from time-to-time (collectively, the “Documentation”) solely for internal use by its then-current employees, contractors, agents, representatives, and where applicable, by any agency listed in the Order Form (each, an “Agency”) and its employees, contractors, agents, and representatives, and other end users authorized to use the Subscription Software on Client’s behalf (collectively, “Authorized Users”) in the ordinary course of Client’s, or such Agency’s, business. eSped further grants Client the right, during the Term, to make a reasonable number of copies of any applicable Documentation solely for Client’s internal business purposes.
   2. Services. eSped agrees to use commercially reasonable effort to provide the Services in accordance with the applicable Order Forms or Statements of Work and any then-current eSped policies.
   3. Restrictions. Client shall not, directly or indirectly, and Client shall require all Authorized Users to not, (a) except as expressly allowed in this Agreement, transfer, assign, export, or sublicense the Subscription Software or any work product, deliverables, or other materials provided by eSped in connection with the Services or otherwise (collectively, “Work Product”), or its rights or licenses, to any other person, organization, or entity, including through rental, timesharing, service bureau, subscription, hosting, or outsourcing the Subscription Software; (b) modify or create any derivative version of the Subscription Software or Work Product; (c) remove or modify any marking or notice on or displayed through the Subscription Software, Work Product, or Documentation, including those related to eSped’s or its suppliers’ proprietary rights; (d) de-compile, decrypt, reverse engineer, disassemble, or otherwise reduce to human-readable form the Subscription Software or Work Product; (e) use the Subscription Software, Work Product, or Documentation to create a competitive product; (f) use the Subscription Software in a manner that circumvents or interferes with the operation of the technological measures that control access to the Subscription Software; or (g) permit access to the Subscription Software to eSped’s competitors except with eSped’s written consent. Without limiting the foregoing, Client may not sublicense, outsource, or otherwise grant access to the Subscription Software to any third-party vendor without eSped’s prior written consent, including any third-party host of the Subscription Software for Client. eSped has the right (but not the obligation) to monitor Client’s and its Authorized Users’ use of the Subscription Software to confirm their compliance with the terms of this Agreement.
   4. Proprietary Rights. All rights, title, and interest to the Subscription Software, Work Product, and Documentation are expressly reserved and retained by eSped or its suppliers, including any service, program or other application that is designed to integrate and be used with the Subscription Software, whether or not owned by eSped, and all improvements, modifications, derivative works, and intellectual property rights in any of the foregoing. Nothing in this Agreement conveys title to, or ownership of, the Subscription Software, Work Product, or Documentation to Client. The eSped name, logo, solution (product) name(s) and any other marks, logos and trade dress are trademarks of eSped, and no right or license is granted by this Agreement to their use. Except for the rights and licenses expressly granted in this Agreement, eSped grants no other rights or licenses, whether by implication, estoppel, or otherwise.
   5. Authorized Users. The total number of Authorized Users is limited to the numerical or category limitations, if any, stated in the applicable Order Forms. Client agrees that, depending on the specific Subscription Software provided by eSped to Client or the category of Authorized User, Authorized Users may have different access and usage rights to the Subscription Software. Client shall ensure that Authorized Users comply with the terms and conditions of this Agreement and any acts or omissions of such Authorized Users will be deemed acts or omissions of Client for which Client agrees to be responsible on a joint and several basis. Client is solely responsible for approving and provisioning any and all usernames and passwords assigned to or adopted by Client’s Authorized Users in connection with use of the Subscription Software. Client is solely responsible for all activities that occur as a result of the use of individual usernames and passwords. Client will notify eSped promptly of any unauthorized use of usernames and passwords or any other breach of security known to Client. Client will not authorize, enable, or permit access to or use of the Subscription Software by any individual or entity (including other school districts) other than an Authorized User.
   6. Software Administrator; Maintenance Windows. Unless expressly agreed otherwise by the parties, at all times Client must have an employee who has obtained the Software administrator certification training from eSped and who is certified by eSped as a Software administrator, if applicable, or an employee who is sufficiently trained or experienced in the use of the Subscription Software to act as the software administrator (“Software Administrator”). If Client’s Software Administrator ceases to serve as such, Client shall promptly provide written notice to eSped and have another employee obtain eSped Software Administrator Certification and be designated as a Software Administrator, at Client’s expense. eSped shall provide Client with assistance regarding the use of the Subscription Software during eSped’s normal business hours (Eastern Time), Monday through Friday. Such assistance shall be provided only to Client’s Software Administrator. eSped may perform system maintenance or software updates periodically upon advanced notice to Client. However, due to exigent circumstances, eSped may, at times, need to perform maintenance without the ability to provide advance notice.
   7. Client Content. The Subscription Software may enable Client and its Authorized Users to upload, link to, transmit, or otherwise provide text, files, images, graphics, illustrations, information, data (including personally identifiable information (“PII”) and personal health information (“PHI”), as those terms are defined in applicable laws, (collectively “Personal Data”), audio, video, photographs and other content and material in any format (collectively, the “Client Content”) into the Subscription Software. Client grants to eSped a non-exclusive, royalty-free license to reproduce, display, distribute, modify, prepare derivative works of, and otherwise use the Client Content for the purpose of providing the Subscription Software and Professional Services to Client and its Authorized Users, and otherwise performing eSped’s obligations and exercising its rights under this Agreement. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content. eSped will act as a data processor, and will act on Client’s instruction, as specified in the Order Form, concerning the treatment of Personal Data provided in connection with the Subscription Software and Services. Client shall provide all notices and obtain all consents (including consent of any parent or guardian for any minor) required for Client’s use of the Subscription Software and receipt of the Services, and eSped’s provision of the Subscription Software and Services, including those related to the collection, use, storage, processing, transfer, and disclosure of Personal Data. Client agrees that it must properly enter data, information, and other Client Content and configure settings within the Subscription Software for the Subscription Software to operate properly. Client shall verify the accuracy of the Client Content and any forms, workflow, or configuration settings entered in the Subscription Software. eSped shall not have any liability arising from the inaccuracy, scoring, completeness, legality, use of, or reliance on the Client Content. Client assumes the sole responsibility for the selection of the Subscription Software and Services to achieve Client’s intended results, the use of the Subscription Software and Services, and the results attained from such selection and use.
   8. Client’s Statement Regarding Client Content. Client states that it is the owner of the Client Content (including evaluation frameworks and rubrics uploaded into the Subscription Software and any other content or data made available to eSped), or Client has notified and obtained informed consent from the owner of the Client Content and all other necessary persons (including parents, students, teachers, interns, aides, principals, other administrative personnel, and classroom visitors), for Client and eSped to use the Client Content as contemplated under this Agreement, and has taken all other actions that may be necessary to ensure that Client’s and its Authorized Users’ use of the Subscription Software and Services, and any related materials provided or produced in connection with such use, complies with all applicable laws and regulations as well as school and district policies.
   9. Integration. Client may, at Client’s direction and with or without eSped’s assistance, integrate or otherwise use the Subscription Software in connection with certain third-party courseware, training, services, software, and other information and materials of third parties (“Third-party Materials”), and eSped may make certain Third-party Materials available in connection with the Subscription Software. Client acknowledges and agrees that (a) eSped is authorized to provide or permit access to the Client Content to the third party providers of such Third-party Materials; and (b) eSped does not control and is not responsible for, does not warrant, support, or make any representations regarding (i) Third-party Materials; (ii) the Client Content provided in connection with such Third-party Materials, including a third-party’s storage, use, or misuse of the Client Content; or (iii) Client’s uninterrupted access to Third-party Materials. Client understands that the use of the Subscription Software may involve the transmission of the Client Content over the Internet and other networks, only part of which may be owned or operated by eSped, and that eSped takes no responsibility for Client Content that is lost, altered, intercepted, or stored without Client’s authorization during the transmission of any Client Content across networks or parts of networks not owned or operated by eSped. If Client engages eSped to assist in Client’s integration or use of the Subscription Software with Third-party Materials, Client authorizes eSped to access and use such Third-party Materials in connection with such assistance and Client states that it has the rights necessary to grant such authorization. Client agrees to be bound by the terms, conditions, and restrictions of the applicable third-party agreements that govern the use of such Third-party Materials. eSped may refuse to integrate Third-Party materials for which Client does not have the appropriate license.
   10. Hosting. Unless an Order Form explicitly provides that particular Subscription Software will be made available by eSped for download and installation on Client’s computers, the Subscription Software will be hosted by an authorized subcontractor (the “Hosting Service Provider”) that has been engaged by eSped and shall only be accessed by Client from its computers and devices via websites of eSped. The Hosting Service Provider is an independent third party not controlled by eSped.
   11. Client Responsibilities. Client agrees that (a) Client shall have sole responsibility for administering access security to the Subscription Software for its Authorized Users; (b) Client shall review any output resulting from its use of the Subscription Software and confirm that such output is correct; and (c) if Client uses the Software for reimbursement or payment from Medicaid or other government agencies, eSped shall have no responsibility, and Client shall have sole responsibility, to submit information and claims for such reimbursement or payment. eSped does not warrant that the Subscription Software, or the results derived therefrom, will meet Client’s requirements, or that the operation of the Subscription Software will be uninterrupted or error-free. Client is solely responsible for obtaining and maintaining, at its own expense, all hardware, software, and services needed to access and use the Subscription Software, including any and all servers, computers, and Internet access services. In connection with the performance of the Services, Client shall provide eSped’s personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable eSped to perform its obligations, and exercise its rights, under and in accordance with the terms and conditions of this Agreement.
   12. FERPA Designation. If an Order Form is for Subscription Software for which eSped accesses, stores, or otherwise processes student PII or PHI, Client designates eSped as a “School Official” with “Legitimate Educational Interests” (as those terms are defined under the Family Educational Rights and Privacy Act of 1974 (“FERPA”)) in such PII and PHI for purposes of providing the Subscription Software to Client, and eSped agrees to abide by the limitations and requirements imposed by FERPA on School Officials. Client acknowledges that: (i) the Subscription Software and Services are services or functions for which Client would otherwise use Client’s own employees; (ii) eSped is under Client’s direct control with respect to eSped’s access to and use of PII and PHI; and (iii) eSped is subject to the requirements of 34 C.F.R. 99.33(a) with respect to eSped’s access to and use of PII and PHI.
2. Invoicing and Payment. All fees and charges will be stated in the applicable Order Forms and Statements of Work. If applicable, the Startup Cost stated on the Order Form will be invoiced to Client by eSped upon execution of the applicable Order Form. Invoices may be sent by eSped or a eSped subsidiary or affiliate. Startup Costs are priced with the assumption that implementation of the Subscription Software will be completed within 120 days after signing. eSped reserves the right to charge Client additional service fees for added project costs due to Client-caused delays occurring after the 120-day implementation period. The Annual Subscription stated on the Order Form will be invoiced to Client by eSped based on the Subscription Start Date stated in the Order Form unless otherwise stated in the Order Form. If no Subscription Start Date is stated in the Order Form, the Subscription Start Date shall be defined as 30 days after Client’s signature of the applicable Order Form. Except as otherwise provided in the applicable Order Form, eSped shall invoice Client in U.S. Dollars and Client shall pay all fees, charges, and expenses within 30 days of the date of an invoice via check or ACH. Without prejudice to its other rights and remedies, if eSped does not receive any payment by its due date, eSped may assess a late payment charge on the unpaid amount at the rate of 1.5% per month or, if less, the highest rate allowed under applicable law. Unless the Order Form states otherwise, eSped reserves the right to increase any of the fees for any Renewal Term by providing notice of such increase to Client at least 30 days prior to the start of such Renewal Term. All charges under this Agreement are exclusive of, and Client is solely responsible for, any applicable taxes, duties, fees, and other assessments of whatever nature imposed by governmental authorities, except for any tax based on eSped’s income. Without limiting the foregoing, Client shall promptly pay to eSped any amounts actually paid or required to be collected or paid by eSped pursuant to any statute, ordinance, rule, or regulation of any legally constituted taxing authority. If the Client claims tax exempt status or the right to remit taxes directly, the tax-exempt number must be entered on the first page of any applicable Order Form. If the parties agree that eSped’s personnel are to travel to Client’s facility or otherwise in connection with any of the Services, Client shall be responsible for the reasonable costs of transportation, lodging, meals, and the like for eSped’s personnel.
3. Warranties and Disclaimers.
   1. Mutual. Each party states that such party’s execution, delivery, and performance of this Agreement (a) has been authorized by all necessary action of the governing body of the party; (b) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any agreement to which the party or any of its assets may be subject; and (c) are not subject to the consent or approval of any third party. Client states on behalf of itself and all of its Authorized Users that it has the full legal right to provide the Client Content and that the Client Content will not (a) infringe, misappropriate, or violate any intellectual property, privacy, publicity, or personality rights of any person or entity including as a result of failure to obtain consent to provide Personal Data or other private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement, including school or district policies; or (c) constitute disclosure of any confidential information owned by any third party.
   2. Subscription Software and Services Warranties. eSped states that (a) the Subscription Software will perform substantially in accordance with the specifications set forth in the then-current Documentation and (b) the Services will be performed in a professional and workmanlike manner. The foregoing warranties will not apply to any non-conformance of the Subscription Software, Work Product, or Services due to (A) Client’s failure to permit the installation or implementation of any update, upgrade, or release provided by eSped, (B) Client’s negligence, abuse, misapplication, or misuse of the Subscription Software (including Client’s failure to operate the Subscription Software in accordance with Documentation), (C) Client’s modification of the Subscription Software not approved in writing by eSped, or (D) Client’s use or operation of the Subscription Software with any technology (including any software, hardware, firmware, system, or network) not approved in writing by eSped. In the event of any breach of the foregoing warranties, reported to and verified by eSped, eSped will use commercially reasonable efforts to correct such non-conformance. Client’s sole remedy for eSped’s breach of any of the foregoing warranties is limited to the replacement, repair, or refund, at eSped’s option, of defective Subscription Software or Work Product or re-performance of the affected Services. Notwithstanding the foregoing, any Third-party Materials shall be subject only to the terms and any warranties provided by the applicable third party and not to any of the foregoing warranties.
   3. Disclaimers. Except as expressly provided in Section 3.3, to the maximum extent permitted by applicable law, eSped and its suppliers expressly disclaim all warranties, whether express, implied, or statutory, as to any aspect of the Subscription Software, Work Product, Services, or other materials provided by eSped, including warranties of merchantability and fitness for a particular purpose. eSped and its suppliers do not warrant that the Subscription Software, Work Product, Services, or other materials provided by eSped will be uninterrupted or error-free; nor does eSped make any warranty as to the results that may be obtained from use of the Subscription Software, Work Product, Services, or other materials provided by eSped.
4. Confidential Information; Privacy.
   1. Confidential Information. During the Term and for two years thereafter, each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. “Confidential Information” means any written information that is marked or otherwise indicated as confidential or proprietary, or, in the case of information that is disclosed orally or written information that is not so marked, by notifying the other party in writing of the proprietary and confidential nature of the information within 10 days after disclosure. Notwithstanding the foregoing, (a) Confidential Information of eSped includes the Subscription Software, Documentation, Services, Work Product, and the terms of this Agreement; and (b) Confidential Information of Client includes Personal Data contained within any Client Content. Confidential Information does not include information which (a) was known to the receiving party free from any duty or obligation of confidentiality or generally in the public domain before disclosure; (b) becomes generally part of the public domain after disclosure by a publication or other means except by a breach of this Agreement by the receiving party; (c) was received from a third party under no duty or obligation of confidentiality to the disclosing party; or (d) was independently developed by the receiving party without use of or reference to Confidential Information. Aggregated and/or de-identified data that does not contain Personal Data generated by eSped or its suppliers in connection with Client’s and its Authorized Users’ use of the Subscription Software and Services will be the Confidential Information and property of eSped. The receiving party will not be liable for disclosures of Confidential Information that are required to be disclosed by law or legal process, so long as the receiving party notifies the disclosing party, provides it with an opportunity to object, and uses reasonable efforts (at the expense of the disclosing party) to cooperate with the disclosing party in limiting disclosure.
   2. Data Security. eSped will utilize commercially reasonable administrative, technical, and physical measures designed to maintain the confidentiality and security of Personal Data submitted by Client into the Subscription Software or otherwise provided to eSped. Client understands and agrees that no security measures can be 100% effective or error-free and understands that eSped expressly disclaims (a) any warranty that these security measures will be 100% effective or error-free or (b) any liability related to the confidentiality and security measures utilized by third parties.
   3. California Consumer Privacy Act. For Clients covered by the California Consumer Protection Act (CCPA), Client states that eSped is a Service Provider to Client with respect to the Personal Information. eSped shall not (a) Sell Personal Information or (b) retain, use, or disclose any Personal Information for any purpose other than for the specific purpose of providing the Subscription Software and Services, including retaining, using, or disclosing Personal Information for a Commercial Purpose. For the avoidance of doubt, the foregoing prohibits eSped from retaining, using, or disclosing Personal Information outside of its direct business relationship with Client. eSped certifies that it understands the obligations under this Section and will comply with them. eSped may use aggregated, anonymized, or Deidentified Personal Information; provided, however, that such use shall be permitted only to the extent that any such data constitutes Aggregate Consumer Information or has been Deidentified and eSped complies with all requirements applicable under the CCPA. For purposes of this Section only, the terms Aggregate Consumer Information, Commercial Purpose, Deidentified, Personal Information, Sell, and Service Provider shall have the meanings specified in the CCPA.
   4. Public Records Act Compliance. To the extent Client is subject to public record acts or freedom of information acts, eSped will work with Client to provide appropriate information in response to records requests, to the extent the requested information is not eSped’s proprietary information or otherwise exempted from disclosure under state law.
5. Feedback. If Client provides eSped with any comments, bug reports, feedback, or suggestions related to the Subscription Software, Work Product, Services, or Documentation (“Feedback”), Client hereby assigns to eSped all of Client’s rights in such Feedback and agrees that eSped shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate.
6. Indemnification. To the maximum extent permitted by applicable law, Client shall indemnify eSped and its officers, directors, employees, and agents and hold them harmless from all third-party claims, liabilities, expenses, and losses (including attorneys’ fees and expenses) arising from or related to any breach by Client of this Agreement, including failure to obtain consent to provide Personal Data.
7. Limitations of Liability. Other than the fees, charges and expenses payable under this Agreement, to the maximum extent permitted by applicable law, in no event shall either party (and in the case of eSped, its suppliers) be liable to the other party or any third party for indirect, incidental, special, consequential, or punitive damages, whether foreseeable or unforeseeable, of any kind whatsoever (including lost profits) arising from or relating to this Agreement or the use or non-use of the Subscription Software, Work Product, or Services. Notwithstanding anything in this Agreement to the contrary, to the maximum extent permitted by applicable law, in no event shall eSped’s (or its suppliers’) total liability arising from or relating to this Agreement, whether based on warranty, contract, tort (including negligence), product liability, or otherwise, exceed the total amounts paid to eSped during the twelve months for the product at issue immediately preceding the events giving rise to such claims. Each party acknowledges and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained for provisions of this Agreement and that fees and consideration payable under this Agreement reflect these disclaimers and limitations.
8. Term and Termination.
   1. Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, continue until such time that there are no valid Order Forms in effect (the “Term”). The initial term of each Order Form under this Agreement shall (a) begin on the Subscription Start Date listed in such Order Form and (b) continue for one year or such other period as provided in such Order Form (the “Order Form Initial Term”) unless earlier terminated in accordance with this Agreement, and, to the extent permitted by applicable law, will automatically renew for successive one-year terms thereafter (each, a “Renewal Term”), subject to fee increases for Renewal Terms in accordance with Section 2 above, unless one party notifies the other party of non-renewal in writing at least 60 days prior to the end of the current Order Form Initial Term or Renewal Term. In the event notice of a price increase in section 2 is not provided to Client within 60 days prior to the end of the current Order Form Initial Term or Renewal Term, Client will have ten (10) days after notice of the price increase within which to provide the notice of non-renewal. If the Order Form contains a proration for a term less than one year, the Initial Term will extend to the end of the first full year of the Order Form.
   2. Termination. Upon notice of termination, all outstanding invoices shall become immediately due and payable. Either party may terminate this Agreement in the event that the other party materially breaches this Agreement and does not cure such breach within 30 days after its receipt of written notice of such breach.
   3. No Termination for Convenience. Client is not entitled to terminate this agreement for any reason other than those contained in this Agreement. No termination for convenience is permitted.
   4. Termination for Lack of Funding. If a Client is bound by state law which prevents it from committing to payment of funds beyond the current school fiscal year and if the funds designated for payment of eSped Subscription Software and/or Services are not allocated in any succeeding school fiscal year, then Client may terminate the Order Form without penalty for such school fiscal year. Client is obligated to pay all charges incurred through the end of the last school fiscal year for which funds were appropriated. Client must notify eSped within 30 days prior to the date of termination.
   5. Effects of Termination. Expiration or termination of any Order Form or Statement of Work shall constitute the expiration or the termination of such Order Form or Statement of Work only and shall not affect this Agreement or any other Order Form or Statement of Work outstanding under this Agreement. Notwithstanding the foregoing, unless otherwise mutually agreed by the parties in writing, any Order Form or Statement of Work outstanding as of the date of termination or expiration of this Agreement shall remain in effect and continue to be governed by the terms of this Agreement and its own terms until such time as such Order Form or Statement of Work is completed, expires, or is otherwise terminated. Upon the termination or expiration of this Agreement, the subscription rights and licenses granted to Client under Section 1.1 will terminate automatically and Client (a) shall immediately cease using the Subscription Software, Work Product, and Documentation; (b) shall immediately and permanently delete all components of the Subscription Software and Work Product (including, for clarity, all ancillary components such as an associated SQL database) from all computers and devices (including all laptops, notebooks, workstations, servers, memory, or storage devises, etc.) in Client’s possession or under Client’s control, such that the Subscription Software and Work Product will not be available to any person after the date of termination or expiration unless read-only access has been elected in Order Form; and (c) for a period of 30 days, may request a copy of the Client Content that is in eSped’s possession in the format retained by eSped or, at eSped’s discretion, be provided read-only access so that Client may download and retain Client Content. After the 30-day period, eSped may, unless legally prohibited, delete all of Client’s data in its systems or otherwise in its possession or control (except for such data that is contained in routine backups). The following provisions of this Agreement will survive expiration or termination: Sections 1.3, 1.4, 3.3, 4, 5, 6, 7, 8.2, 8.5 and 10 (all subparts). eSped may (without limitation of any other rights or remedies) suspend Client’s and its Authorized Users’ use of the Subscription Software in the event that (A) Client is delinquent in payment of any amount due to eSped under this Agreement (and has not cured such delinquency within five days following written notice to Client), (B) Client has breached any of the provisions of Section 1 of this Agreement, or (C) in eSped’s reasonable good faith determination, suspension of use of the Subscription Software is necessary to avoid or mitigate harm to the security of eSped’s or any of its clients’ systems or data. Any such suspension will not constitute a termination of this Agreement.
   6. Treatment of Bundled Discounts Upon Termination. In the event that Client has been given a discount off of eSped’s list prices for bundling Subscription Software solutions and/or entering into a multi-year agreement, and Client terminates one or more of the bundled Subscription Software solutions or terminates prior to the end of the multi-year term, eSped may charge Client an early termination fee of up to 25% of the annual subscription fee for the terminated solution(s) within thirty (30) days after termination. This clause will not apply in the event the Agreement was terminated as a result of eSped’s breach in accordance with section 8.2.
9. District Ordering. Any other school district in the same state as Client (“School District”) may also purchase from eSped a license or subscription to the Subscription Software and provision of the Services for the School District’s own account on the same terms and conditions as are applicable to Client under this Agreement (excluding Client’s Order Forms and Statements of Work). Each School District will be separately liable for payment for such Subscription Software and Services and its compliance with this Agreement, and neither Client nor School District will be liable for the acts, omissions, or obligations of any other School District under this Agreement. eSped will have no obligations to provide any Subscription Software or Services to a School District until such time as eSped and such School District enter into an Order Form which references and is subject to this Agreement. By so doing, the School District agrees to be bound by this Agreement and for purposes of its order is considered “Client” as that term is used in this Agreement. In the event that Client and eSped amend this Agreement (each an “Amendment”), any and all such Amendments will be enforceable against each School District that has executed an Order Form which references and is subject to this Agreement upon notice of such Amendment from eSped unless eSped has agreed in writing with School District that the Amendment, or specific provisions within the Amendment, do not apply to such School District.
10. General.
    1. Independent Contractors. eSped and Client are each independent contractors and neither party shall be, nor represent itself to be, the franchiser, partner, broker, employee, servant, agent, or legal representative of the other party for any purpose whatsoever.
    2. Assignment. Client may not sublicense, assign, or transfer this Agreement, or any rights and obligations under this Agreement, in whole or in part, without eSped’s prior written consent. Any attempted assignment in violation of this Section shall be void. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of each party.
    3. Compliance with Laws. Client will comply with all local, state, and federal laws, regulations or other limitations in the use and operation of the Subscription Software. Client will not directly or indirectly export or transfer any technical data or software in violation of any laws, regulations rules or other limitations imposed by the US export control laws or that of any other country.
    4. Force Majeure. Notwithstanding anything to the contrary in this Agreement, except for Client’s obligations to pay amounts due under this Agreement, neither party will be deemed to be in default of any provision of this Agreement for any unforeseen delay, error, failure, or interruption of performance due to any act of God, United States or foreign governmental acts in either a sovereign or contractual capacity terrorism, pandemic, war, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, road icing or inclement conditions, flood, freight embargos, problems with the Internet, or act of any other person not under the control of such party.
    5. Payments. Client’s payment obligations under this Agreement are absolute and unconditional and are not subject to any abatement, reduction, defense, setoff counterclaim or recoupment due or alleged to be due as a result of any past, present or future claim that Client may have against eSped.
    6. Additional Insured. If the Client requests to be added as an additional insured on any eSped insurance policy, the limits of such policies shall be subject to the Limitations of Liability stated in Section 7 above.
    7. Choice of Law/Venue. This Agreement shall be governed by the laws of the State of Delaware, without reference to its conflict of laws principles. Any disputes under this Agreement shall be resolved in a federal or state court of competent jurisdiction in the state where the Client is located.
    8. Amendment. This Agreement may be amended only by written agreement of the parties, and any attempted amendment, including any handwritten changes on this Agreement, in violation of this Section shall be void.
    9. No Waiver. The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement.
    10. Severability. If any provision of this Agreement is held invalid, illegal, or incapable of being enforced, by reason of any rule of law, administrative order, judicial decision, or public policy, all other conditions and provisions of this Agreement shall, nevertheless, remain in full force and effect, and no covenant or provision shall be deemed dependent upon any other covenant or provision unless so expressed herein.
    11. Construction.This Agreement does not confer any rights or remedies upon any person other than the parties, except eSped’s suppliers. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
    12. Counterparts. The Order Form may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be the same agreement.

Each of the parties has caused its authorized representative to execute the Order Form (which incorporates these terms) as of the Effective Date listed on the Order Form.