Terms of Use
Tandem™ is a cloud-based software platform designed to support special education operations, program coordination, and related services (the “Services”), offered by Flying Point Education, Inc., doing business as Tandem (“FPE”). For purposes of these Terms of Use, “Tandem,” “we,” “our,” and “us” refer to Flying Point Education, Inc.
These Terms of Use, together with any exhibits, schedules, or addenda thereto (the “Terms”), form a binding agreement between Flying Point Education, Inc. and the organization accessing or using the Services (the “Client”). By accessing, receiving, or using the Services, you agree, on behalf of Client, to be bound by and to comply with these Terms. Client represents that it has the authority to enter into these Terms and use the Services. Any individual who accesses the Services, submits data, or acts on behalf of an organization represents and warrants that they are authorized to bind such organization to these Terms.
1. Definitions
“Agreement” means these Terms of Use, together with any policies or documents referenced in them.
“Anonymized Usage Data” means information derived from Client Data that has been de-identified in accordance with the de-identification standards set forth in 34 CFR § 99.31(b) (removing all direct and indirect identifiers and applying a reasonable determination standard that the student’s identity is not personally identifiable), such that neither Client, any User, nor any individual student can reasonably be identified. Anonymized Usage Data shall not be considered Client Data or Student Data.
“Client Data” means all information or content provided to Tandem through the Services by or on behalf of Client or its Users, including personal data.
"Education Records" means records that are (i) directly related to a student and (ii) maintained by an educational agency or institution or by a party acting for such agency or institution, as defined in FERPA (20 U.S.C. § 1232g) and its implementing regulations (34 CFR Part 99), including without limitation Individualized Education Programs ("IEPs"), evaluation reports, progress monitoring data and any other records subject to the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et. seq.).
"Personally Identifiable Information" or "PII" means information that, alone or in combination, is linked or linkable to a specific student, as defined in 34 CFR 99.3, including but not limited to: name, address, Social Security number, student ID, date of birth, mother's maiden name, biometric record, or other indirect identifiers such as date of birth, place of birth, or other information that, alone or in combination, is liked or linkable to a specific student that would allow a reasonable person in the school community to identify the student.
"Security Incident" means any unauthorized access to, acquisition of, use of, or disclosure of Client Data, including Student Data and Education Records, that compromises the security, confidentiality or integrity of such data.
“Service Term” means the period during which Client is permitted to access and use the Services, including any applicable renewal periods.
“Services” means Tandem’s cloud-based software platform, including all features, tools, documentation, and related services made available under these Terms.
"Student Data" means any data, whether personally identifiable or otherwise, that is (i) created or provided by a student or the student's parent or legal guardian in the course of the student's use of the Services; (ii) created or provided by an employee or agent of Client about a student; or (iii) gathered, generated or inferred by the Services from student use, including but not limited to Education Records, metadata, usage data, cookies and persistent unique identifiers. Student Data is a subset of Client Data.
"Subprocessor" means any third party engaged by Tandem to process Client Data on Tandem's behalf in connection with the Services, including Third-Party Service Providers.
“Third-Party Services” means any applications, tools, or services provided by third parties that are integrated into or used in connection with the Services.
“Users” means the individuals authorized by Client to use the Services, including employees, contractors, school staff, and students approved by Client.
2. Services
A. Provision of the Services.
Subject to these Terms, Tandem grants Client and its Users a non-exclusive, non-transferable, non-sublicensable right during the Service Term to access and use the Services solely for Client’s internal educational and operational purposes related to special education program coordination, IEP management, compliance, and related services. Tandem will make the Services available in accordance with these Terms. Except as expressly stated, no other rights or licenses are granted, and Tandem retains all right, title, and interest in and to the Services and all related intellectual property.Tandem may update, modify, or improve the Services from time to time, provided that such changes do not materially reduce the core functionality of the Services.
B. Support.
Tandem will provide reasonable email support for the Services during normal business hours.
C. Access.
Tandem will provide Users access to the Services through password-protected accounts. Tandem will provide Client-designated administrator Users (“Admins”) with appropriate administrative credentials and tools. Admin tools may include the ability to create additional Admins, approve or remove Users, view User information, and edit or delete Client Data. All actions taken through Admin or User tools will be deemed authorized by Client.
D. Restrictions.
Client shall not, and shall not permit others to:
(a) reverse engineer, decompile, or disassemble the Services or attempt to access the underlying technology;
(b) use the Services for competitive analysis, benchmarking, or to develop a competing product or service; or
(c) copy, sublicense, distribute, or otherwise make the Services available to any third party except as expressly permitted by these Terms.
E. Third-Party Services
Certain features of the Services may rely on or integrate with Third-Party Services, including services that use artificial intelligence (AI) or machine learning technologies. Client acknowledges that certain AI features require the transmission of Client Data to Third-Party Service Providers as part of delivering the Services. Tandem shall ensure that all such Third-Party Service Providers: (a) are bound by written agreements imposing data protection obligations no less protective than those set forth in these Terms; (b) are prohibited from using Client Data, including Student Data and Education Records, to train, improve, or develop AI models or for any purpose other than providing the contracted services; (c) are prohibited from retaining Client Data beyond the duration necessary to process a specific request or transaction; and (d) comply with FERPA, COPPA, and applicable state student data privacy laws to the extent they access Education Records or Student Data.
As between Tandem and Client, Client is solely responsible for its and its Users’ use of all AI features. Client understands that AI features may return content that is inaccurate, incomplete, or inappropriate for a particular purpose.
Due to the nature of machine learning systems, similar prompts may result in similar responses as a function of machine learning processes, without any disclosure or cross-use of Client Data between customers.
Client is responsible for evaluating the accuracy, appropriateness, and suitability of all AI responses for its intended use, including conducting human review and applying its own quality control procedures. Client acknowledges that AI features are intended to assist and support professional judgment and are not a substitute for human review and decision-making. Client is responsible for independently reviewing, validating, and approving all AI-generated content before use, particularly with respect to Individualized Education Programs, evaluations, and other decisions affecting students’ rights under IDEA and Section 504. Tandem shall not be liable for decisions made by Client or its Users based on AI-generated content that Client has reviewed and approved for use.
Client further acknowledges that Third-Party Services are an integral part of certain features of the Services. Tandem does not control and is not responsible for the availability, operation, or data handling practices of Third-Party Service Providers. Tandem shall not be liable for any use, storage, disclosure, deletion, or breach of Client Data by any Third-Party Service Provider.
Tandem does not guarantee the continued availability of any Third-Party Service. In the event Tandem materially modifies or discontinues a Third-Party Service that constitutes a core feature of the Services, Tandem shall provide Client with at least thirty (30) days’ prior written notice and shall use commercially reasonable efforts to provide a comparable alternative. If no comparable alternative is available and the modification materially reduces the core functionality of the Services, Client may terminate these Terms upon written notice and receive a prorated refund of prepaid fees for the remainder of the then-current Service Term.
3. Client Responsibilities
A. General Responsibilities.
Client is responsible for all activity that occurs through its User accounts and for all Client Data submitted to or accessed through the Services, including student records and Individualized Education Programs (“IEPs”). Client shall obtain all permissions, authorizations, and consents required for Users to access and use the Services and to submit Client Data.
Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Tandem of any such activity.
Client agrees to use the Services in compliance with all applicable local, state, federal, and foreign laws and regulations, including the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and its implementing regulations (34 CFR Part 99) (“FERPA”), the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) (“IDEA”), the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501–6506) (“COPPA”), and all applicable state student data privacy laws. Client represents and warrants that its use of the Services, including designation of Tandem as a school official under FERPA, is in compliance with Client’s annual FERPA notification requirements and institutional policies.
Client is solely responsible for maintaining copies of original IEPs outside the Services. Tandem shall use commercially reasonable efforts to maintain the integrity and availability of Client Data stored within the Services and shall provide reasonable data export functionality to enable Client to maintain backup copies. Any act or omission by a User that would constitute a breach of these Terms if committed by Client shall be deemed a breach by Client.
B. Acceptable Use.
Client shall use the Services solely for its internal educational purposes and shall not, and shall not permit Users to:
(a) attempt to gain unauthorized access to, interfere with, or disrupt the integrity or performance of the Services, systems, or networks related to the Services or any data contained therein;
(b) harass, misuse, or interfere with another User’s access to or use of the Services.
4. Data Handling and Privacy
A. Client Data
As between Tandem and Client, all Client Data remains the sole property of Client. Client grants Tandem a limited, non-exclusive, royalty-free license during the Service Term to access, use, store, process, and reproduce Client Data solely to: (a) provide, maintain, support, and improve the Services; (b) prevent or address technical or service issues; (c) comply with applicable law or legal process; (d) as otherwise expressly authorized in writing by Client; (e) create Anonymized Usage Data solely for purposes of improving, developing, and maintaining the Services, provided that such Anonymized Usage Data shall not be used for any commercial purpose unrelated to the Services, including marketing, advertising, or sale to third parties; and (f) provide necessary access to Subprocessors acting on Tandem’s behalf in connection with the Services, including AI features, provided that: (i) such Subprocessors are bound by written data processing agreements imposing obligations no less protective than those in these Terms; (ii) such Client Data shall not be used by such Subprocessors to train, improve, or develop any AI or machine learning models; (iii) such Subprocessors shall not retain Client Data beyond the period necessary to perform the specific processing task; and (iv) Tandem shall maintain a current list of Subprocessors that process Client Data and shall make such list available to Client upon request and provide at least thirty (30) days’ prior written notice before engaging any new Subprocessor that will process Student Data or Education Records.
Subject to the limited rights granted above, Tandem acquires no ownership interest in Client Data.
B. Data Compliance
Tandem has implemented commercially reasonable administrative, technical, and organizational measures designed to protect Client Data against accidental loss and unauthorized access, use, alteration, or disclosure.
Tandem will not use or sell personal information of Users to advertise or market to Users or their families or guardians.
Client Data may include student education records and special education records subject to the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and its implementing regulations (34 CFR Part 99) (“FERPA”), as well as records governed by the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) (“IDEA”). To the extent Client Data includes such records (“Education Records”), Tandem will comply with FERPA and IDEA and will not disclose or use Education Records except as permitted by these Terms, required by law, or otherwise authorized in writing by Client.
For purposes of FERPA, the parties acknowledge and agree that Tandem is designated as a ‘school official’ with ‘legitimate educational interests’ under FERPA, as those terms are defined in 34 CFR § 99.31(a)(1). In that capacity, Tandem shall: (a) be under the direct control of Client with respect to the use and maintenance of Education Records; (b) use Education Records only for the purposes for which disclosure was authorized; (c) not redisclose Education Records to any third party except as permitted by FERPA, required by law, or authorized in writing by Client; (d) comply with all FERPA requirements applicable to school officials; and (e) upon request, provide Client with access to Education Records in Tandem’s possession to enable Client to fulfill its obligations under FERPA, including responding to parent and eligible student requests for access or amendment.
The Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6506 (“COPPA”) requires verifiable parental consent for the collection of personal information from children under 13. To the extent the Services are used by children under 13, Client represents that it has obtained or has the authority to provide consent on behalf of parents or guardians for the collection and use of personal information from children under 13, in accordance with COPPA and the FTC’s guidance on the school consent exception. Tandem shall: (i) collect only such personal information from children under 13 as is reasonably necessary to provide the Services for the educational purpose authorized by Client; (ii) not use such personal information for any commercial purpose unrelated to the educational Services; (iii) not disclose such personal information to third parties except as necessary to provide the Services, as required by law, or as authorized in writing by Client; (iv) maintain reasonable security procedures to protect such information; and (v) delete such personal information when it is no longer needed for the educational purpose for which it was collected, or upon Client’s request.
In the event of a Security Incident affecting Client Data, Tandem shall (i) notify Client in writing without unreasonable delay and in no event later than seventy-two (72) hours after Tandem's discovery or notification that a Security Incident has occurred; (ii) provide Client with a description of the nature of the incident, the types of data affected, the estimated number of individuals affected, and the steps Tandem is taking to investigate and remediate the incident; (iii) cooperate with Client in investigating the incident and in meeting any notification obligations Client may have under applicable law; (iv) take immediate steps to contain and remediate the incident; and (v) provide Client with a written post-incident report within thirty (30) days of resolution, including root cause analysis and measures implemented to prevent recurrence. Tandem shall be responsible for costs associated with notification to affected individuals to the extent the Security Incident is caused by Tandem's breach of its obligations under these Terms.
Tandem shall not: (i) use Student Data or Education Records for any purpose other than providing the Services as authorized under these Terms; (ii) use Student Data to advertise or market to students, parents or guardians; (iii) use Student Data for behavioral targeting or profiling of any student; (iv) sell, rent or trade Student Data or Education Records to any third party; (v) build, create or accumulate a personal profile of any student other than in furtherance of providing the Services; or (vi) use Student Data to inform, influence, or enable any advertising or commercial purpose unrelated to the Services.
Tandem shall: (i) retain Client Data, including Student Data and Education Records, only for as long as necessary to fulfill the purposes set forth in these Terms or as required by applicable law; (ii) upon termination or expiration of these Terms, and subject to Section 10 herein, after the 60-day export period, Tandem deletes all Client Data (including Education Records and IEP-related information) within 30 days. Copies in backup systems deleted per standard backup rotation schedule but in no event later than 90 days following primary deletion, unless a longer period is required by applicable law; (iii) upon request, provide Client with a written certification of deletion; and (iv) store Client Data within the United States unless otherwise agreed in writing by Client.
C. Privacy Policy
The Tandem Privacy Policy, as may be updated from time to time, is incorporated by reference and applies to Users’ use of the Services. Non-material changes to the Privacy Policy will become effective upon notice to Client. Material changes to the Privacy Policy that affect the collection, use, disclosure, or security of Student Data or Education Records shall require Client’s prior written consent before becoming effective. Tandem shall provide at least thirty (30) days’ advance written notice of any material Privacy Policy change.
D. Feedback and Public Reference
Tandem may use de-identified feedback, suggestions, or recommendations provided by Client or Users for purposes of improving the Services, provided that such use does not identify Client or any User. Tandem shall not reference Client’s name, logo, or likeness in marketing or business development materials without Client’s prior written consent, which may take the form of an email.
E. Data Processing Addendum
The parties may enter into a Data Processing Addendum ("DPA"), which shall be incorporated into and form part of these Terms. In the event of any conflict between the DPA and these Terms with respect to the processing of Student Data or Education Records, the DPA shall control.
5. Confidentiality
A. Definition of Confidential Information
“Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential based on the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, these Terms, the Services (including software, features, and documentation), non-public product information, technical data, business plans, pricing, and business processes. For the avoidance of doubt, all Client Data, Student Data and Educational Records shall be considered Confidential Information of Client.
Confidential Information does not include information that (a) is or becomes publicly available through no breach of these Terms; (b) was lawfully known to the Receiving Party before disclosure; (c) is lawfully received from a third party without confidentiality obligation; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
B. Protection and Use
The Receiving Party shall protect the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own confidential information of like kind, but no less than reasonable care. The Receiving Party shall use Confidential Information solely to perform its obligations or exercise its rights under these Terms and shall not disclose it to any third party except as permitted herein.
Access to Confidential Information shall be limited to employees, contractors, and agents who have a legitimate need to know and who are bound by confidentiality obligations at least as protective as those in these Terms. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized access or disclosure.
To the extent Client is subject to any freedom of information, open records, or similar laws (“Disclosure Laws”), Client agrees to assert all available exemptions and protections to prevent disclosure of Tandem’s Confidential Information to the fullest extent permitted by law.
With respect to Education Records subject to IDEA, including Individualized Education Programs, evaluations and related documentation, the Receiving Party shall implement additional safeguards as required by 34 CFR § 300.610-300.627, including maintaining records of access.
C. Compelled Disclosure
If the Receiving Party is required by law to disclose any Confidential Information, it shall, to the extent legally permitted, provide the Disclosing Party with prior written notice and reasonable assistance, at the Disclosing Party’s expense, to seek a protective order or otherwise contest the disclosure.
D. Remedies
If the Receiving Party discloses or uses, or threatens to disclose or use, any Confidential Information of the Disclosing Party in violation of this Section, the Disclosing Party shall be entitled, in addition to any other remedies available, to seek injunctive relief to prevent or restrain such acts. The parties acknowledge that a breach of this Section may cause harm for which other available remedies may be inadequate.
6. Fees and Payment
A. Fees.
Client shall pay all fees as set forth in the applicable pricing schedule or order accepted by Tandem. Except as expressly stated in these Terms, all fees are non-refundable.
If Tandem terminates the Services for convenience and not due to Client’s breach, any prepaid fees will be refunded on a prorated basis. Tandem may introduce fees for new features or services upon notice to Client. Client will have the option to decline such features, and continued use after notice will constitute acceptance of the applicable fees. If Client terminates for Tandem's uncured material breach, prepaid fees will be refunded on a prorated basis. If Client terminates for convenience prior to the end of the Service Term, Client shall remain responsible for fees through the end of the then-current Service Term unless otherwise agreed in writing.
B. Payment Terms.
All invoiced amounts are due within thirty (30) days from the invoice date and are payable in U.S. dollars. Any undisputed amounts not paid when due may accrue interest at the lower of one and one-half percent (1.5%) per month or the maximum rate permitted by law. If any undisputed balance remains unpaid for thirty (30) days or more after the due date, and Tandem has provided Client with at least ten (10) days’ prior written notice of the delinquency and its intent to suspend, Tandem may suspend access to the Services. Client shall pay all of Tandem’s reasonable fees, costs and expenses (including reasonable attorney’s fees) if legal action is required to collect outstanding undisputed balances.
C. Taxes.
All fees are exclusive of any taxes or duties of any nature. Client is responsible for all such taxes, except for taxes based on Tandem’s net income. If Tandem is required to collect or remit taxes on Client’s behalf, such amounts will be invoiced to Client unless Client provides a valid tax exemption certificate.
7. Warranties and Disclaimers
A. Mutual Warranties.
Each party represents and warrants that it has the legal authority to enter into these Terms and to perform its obligations hereunder.
B. Client Warranties.
Client represents and warrants that it has obtained and will maintain all rights, permissions, and consents necessary to provide Client Data to Tandem for use in connection with the Services and that such use does not violate any applicable laws or third-party rights.
C. Tandem Warranties
Tandem represents and warrants that: (i) it will comply with all applicable federal and state laws regarding the protection of Student Data and Education Records, including FERPA, IDEA, and COPPA; (ii) it has implemented and will maintain administrative, technical, and physical safeguards reasonably designed to protect Client Data against Security Incidents; (iii) it will not use Client Data, including Student Data, for any purpose not expressly authorized by these Terms; (iv) its employees and contractors who have access to Client Data have undergone background checks consistent with industry standards and have received training on student data privacy obligations; and (v) it will cooperate with Client in responding to parent, guardian, or student requests regarding access to, correction of, or deletion of Education Records.
C. Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TANDEM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
TANDEM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WILL MEET CLIENT’S SPECIFIC REQUIREMENTS. THE SERVICES ARE INTENDED TO SUPPORT EDUCATIONAL AND OPERATIONAL WORKFLOWS AND DO NOT REPLACE PROFESSIONAL JUDGMENT.
CLIENT ACKNOWLEDGES THAT ANY AUTOMATED OR SYSTEM-ASSISTED FEATURES MAY RESULT IN INFORMATION THAT IS INACCURATE, INCOMPLETE, OR UNSUITABLE FOR CERTAIN USES, AND THAT CLIENT IS SOLELY RESPONSIBLE FOR REVIEWING AND VALIDATING SUCH INFORMATION BEFORE RELYING ON IT.
CLIENT ACKNOWLEDGES AND AGREES THAT TANDEM SHALL NOT BE LIABLE FOR THIRD-PARTY SERVICES, AND THAT ANY RISK OF HARM OR LOSS ARISING FROM SUCH THIRD-PARTY SERVICES RESTS SOLELY WITH CLIENT.
AT TANDEM’S DISCRETION, TANDEM MAY MAKE AVAILABLE PRE-RELEASE, TRIAL, OR “BETA” FEATURES OR TOOLS FOR EVALUATION OR TESTING PURPOSES. SUCH FEATURES OR TOOLS ARE PROVIDED ON AN EXPERIMENTAL BASIS, WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED, SUSPENDED, OR DISCONTINUED AT TANDEM’S SOLE DISCRETION. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION APPLY IN FULL TO ANY SUCH FEATURES OR TOOLS. NOTWITHSTANDING THE FOREGOING DISCLAIMERS, NOTHING IN THIS SECTION SHALL LIMIT OR DISCLAIM TANDEM'S OBLIGATIONS WITH RESPECT TO THE PROTECTION OF CLIENT DATA, STUDENT DATA AND EDUCATIONAL RECORDS AS SET FORTH IN SECTION 4 OF THESE TERMS.
8. Limitation of Liability
A. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANDEM SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS, COSTS OF SUBSTITUTE SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT TANDEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANDEM’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO TANDEM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
B. Limitation of Action.
Any claim or action arising out of or relating to these Terms must be brought within two (2) years after the cause of action accrues.
C. Exceptions.
Tandem shall not be liable for any claims, losses, or damages arising from Third-Party Services or from any claims brought by third parties against Client.
D. Waiver of Sovereign Immunity.
To the extent permitted by applicable law, and only with respect to claims arising under these Terms for undisputed payment obligations or breach of Section 5 (Confidentiality), Client waives any claim to sovereign immunity. Nothing in this Section shall be construed as a waiver of sovereign immunity with respect to any other claims or as a waiver of any rights Client may have under applicable procurement or contracting statutes.
E. Scope.
The limitations and exclusions in this Section apply to all legal theories of liability, whether in contract, tort, or otherwise, and reflect the Parties’ allocation of risk under these Terms.
F. Exclusions from Limitation.
The limitations set forth in this Section 8 shall not apply to: (i) either party's indemnification obligations under Section 9; (ii) either party's breach of Section 5 (Confidentiality); (iii) Tandem's breach of its obligations regarding Client Data, Student Data or Educational Records under Section 4; (iv) either party's willful misconduct or gross negligence; or (v) Client's payment obligations under Section 6.
9. Indemnification
A. Tandem Indemnification.
Tandem will, at its expense, defend Client from and against any third-party claim, suit, or proceeding (“Claim”) to the extent alleging that Client’s authorized use of the Services infringes a third party’s intellectual property rights, and will pay any damages and reasonable attorneys’ fees finally awarded against Client by a court of competent jurisdiction arising from such Claim. This obligation does not apply to the extent a Claim results from: (i) Client Data; (ii) Third-Party Services or other third-party products; (iii) modifications to the Services not made by Tandem; or (iv) Client’s or any User’s breach of these Terms, negligence, or misuse of the Services. Tandem will also defend Client from and against any Claim arising from a Security Incident caused by Tandem's breach of its data protection obligations under these Terms, and will pay any damages, fines, penalties and reasonable attorneys' fees awarded against Client arising from such Claim.
B. Client Indemnification.
To the extent permitted by applicable law and subject to appropriation of funds, Client will, at its expense, defend Tandem from and against any Claim arising out of or relating to: (i) Client’s breach of these Terms; (ii) Client Data, including any allegation that such data infringes or violates the rights of a third party; or (iii) Client’s or any User’s use of the Services in violation of applicable law, and will pay any damages and reasonable attorneys’ fees finally awarded against Tandem arising from such Claim.
C. Indemnification Procedures.
The party seeking indemnification shall provide prompt written notice of any Claim, permit the indemnifying party to assume exclusive control of the defense and settlement of the Claim (provided that no settlement may be entered without the indemnified party’s prior written consent), and reasonably cooperate with the defense. The indemnified party may participate in the defense at its own expense.
D. Exclusive Remedy.
This Section states the sole and exclusive remedy of the parties with respect to Claims described in this Section.
10. Term and Termination
A. Term
These Terms commence on the date Client first accesses or uses the Services and will continue for an initial Service Term of one (1) year, unless otherwise agreed in writing. Thereafter, the subscription will automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
Tandem may terminate the Services immediately for any material violation of these Terms. Tandem may also terminate the Services for convenience upon at least thirty (30) days’ written notice to Client.
B. Suspension
Tandem may suspend Client’s or any User’s access to the Services, in whole or in part, if: (a) the Services are being used in violation of these Terms or applicable law; (b) Client’s or any User’s account is compromised or accessed without authorization; (c) suspension is reasonably necessary to protect the security or integrity of the Services; (d) suspension is required by law; or (e) undisputed fees are more than thirty (30) days overdue.
C. Termination
Client may terminate these Terms for convenience by providing written notice at least sixty (60) days before the end of the then-current term.
Either party may terminate these Terms for cause upon thirty (30) days’ written notice of a material breach, unless such breach is cured within the notice period. Either party may terminate immediately if the other becomes insolvent or subject to bankruptcy, receivership, liquidation, or similar proceedings.
D. Effect of Termination
Upon termination or expiration of these Terms: (a) Client’s right to access and use the Services immediately ceases; (b) all outstanding payment obligations become immediately due; (c) Tandem shall make Client Data available for export for a period of not less than sixty (60) days following the effective date of termination and, if requested, Tandem shall provide Client with an export of all Client Data in a commonly used, machine-readable format (e.g., CSV, XML, or JSON) at no additional charge. Tandem shall cooperate with Client to facilitate an orderly transition, including providing reasonable technical assistance for data migration. After the 60-day export period, Tandem deletes all Client Data (including Education Records and IEP-related information) within 30 days. Copies in backup systems are deleted per standard backup rotation schedule but in no event later than 90 days following primary deletion. Tandem shall provide Client with written certification of such deletion within ten (10) business days of completing the deletion.
E. Survival
The following Sections will survive any termination or expiration of these Terms: 1, 4, 5, 6 (to the extent of unpaid obligations), and 7 through 11.
11. General Provisions
A. Governing Law and Venue
These Terms and any dispute arising out of or relating to them will be governed by the laws of the State of Delaware, without regard to its conflict of law principles. To the extent permitted by law, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Delaware.
If Client is a United States public educational institution that is legally required to use a governing law or venue other than Delaware, then the law and venue required by such Client’s state shall apply.
Before initiating any legal proceeding, the parties shall attempt in good faith to resolve any dispute through informal negotiation for a period of not less than thirty (30) days. If the dispute is not resolved through negotiation, either party may pursue its remedies as provided herein.
B. Relationship of the Parties; Subcontractors
This Agreement may not be construed to create or imply any partnership, agency or joint venture between the parties. Tandem may use subcontractors to perform its obligations under these Terms, provided that Tandem remains responsible for their actions and omissions in connection with these Terms.
There are no third-party beneficiaries to these Terms.
C. Force Majeure
Except for payment obligations, neither party will be liable for failure or delay in performance caused by events beyond its reasonable control, provided that the affected party uses commercially reasonable efforts to resume performance.
D. Notices
All notices under these Terms must be in writing and may be sent by email, recognized overnight courier, or certified mail. Notices to Client may be sent to the email address associated with Client’s account. Notices to Tandem may be sent to the contact information provided on Tandem’s website. Notice will be deemed given upon actual delivery or confirmed receipt.
E. Waiver and Severability
Any express waiver or failure to exercise promptly any right under these Terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of these Terms is held to be contrary to law or unenforceable, the provision shall be changed and interpreted so as to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate these Terms.
F. Assignment
Client may not assign these Terms, whether by operation of law or otherwise, without Tandem’s prior written consent. Tandem may assign these Terms without Client’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Tandem’s assets, provided that the assignee assumes all of Tandem’s obligations under these Terms and that Tandem provides Client with written notice of the assignment within thirty (30) days. Client shall have the right to terminate these Terms upon sixty (60) days’ written notice following receipt of such notice if the assignee is a direct competitor of Client or if the assignment would result in a material adverse change in the Services. Any attempted assignment in violation of this Section shall be void. These Terms will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
G. Entire Agreement
These Terms, together with any exhibits, schedules, or addenda thereto, constitute the entire agreement between the parties relating to the Services and supersede all prior or contemporaneous agreements, proposals, or representations, whether written or oral.
No modification or waiver of these Terms will be effective unless in writing and signed by both parties. No terms or conditions stated in any Client purchase order or other documentation shall be incorporated into or form any part of these Terms unless expressly agreed in writing by both parties.