ASPIRE SOFTWARE
Terms of Service
Prior Version: December 2023 | February 2024 | July 2024 | October 2024
Last Updated: October 20, 2026
These Terms of Service (“Terms”), together with any agreement or ordering document or online order specifying the Services to be provided hereunder and that incorporates these Terms, and any and all attachments thereto, including those incorporated by reference therein (“Order,” and together with these Terms, the “Agreement”) constitute a binding legal agreement between you and Aspire, LLC (“Aspire”) regarding your use of the Aspire software-as-a-service proprietary online platform, additional services related thereto, and/or certain standalone software or service offerings, and related content made available to you through our website(s) located at youraspire.com and/or such other websites as we designate from time to time, and through our mobile applications and related technologies (“Mobile Apps,” and collectively, including any updated or new features, functionality, and technology, the “Service”), as well as any other products or services, including professional services, provided to you by Aspire. Complete product and support descriptions are available online and are true and accurate at the date of their publication and as updated from time to time. The Service operates substantially as described in the documentation published online within the Aspire Knowledge Base. Please read the Agreement carefully. By accessing or using the Service, you accept the Agreement and agree to use the Service in compliance with the Agreement. If you are registering for an account or using the Service on behalf of an entity, organization, or company (“Corporate Entity”), you agree to the Agreement on behalf of that Corporate Entity and you represent and warrant to Aspire that you have the authority to bind that Corporate Entity to the Agreement (and, in which case, the terms “Customer”, “you” and “your” will refer to that Corporate Entity). If you are not registering for an account or using the Service on behalf of a Corporate Entity or if you are registered for an account or using the Service as an Authorized User (as defined below) of a Corporate Entity, then the terms “Customer”, “you” and “your” will refer to you in your individual capacity. The terms “Aspire,” “we,” “us,” and “our” refer to Aspire and our Affiliates, as applicable. Aspire’s direct competitors (or third-party agents acting on behalf of such direct competitors) are prohibited from accessing the Service.
We may periodically make changes to these Terms, and if we do we will post the changes on this page and will indicate at the top of this page the date these Terms were last updated. You may view the most current version at https://www.youraspire.com/legal/terms-of-service. We will also give you not less than thirty (30) days advance notice of any material changes, unless such material changes result from changes in laws, regulations, or requirements from telecommunications or other providers. Following such notice, your continued use of the Service on or after the date the updated version of these Terms is effective and binding constitutes your acceptance of the updated version of these Terms. The updated version of these Terms supersedes all prior versions. If you do not agree to the updated version of these Terms, you must stop using the Service immediately. You should periodically visit this page to review the current version of these Terms so you are aware of any revisions. If you do not agree to abide by these Terms, you shall not access, browse, or use the Service.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE CUSTOMER TO SUBMIT CLAIMS CUSTOMER HAS AGAINST ASPIRE TO BINDING AND FINAL ARBITRATION, AND WAIVES EACH PARTY’S RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. UNDER THE ARBITRATION AGREEMENT, (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ASPIRE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Additional Terms: When using certain features or functionality of the Service, you will be subject to any additional terms applicable to such features that may be appended to the Agreement or posted on or within the Service from time to time, including our Privacy Policy (as described in Section 29 below) and any user specifications regarding Authorized Users referenced herein from time to time (the “User Specifications”). All such terms are hereby incorporated by reference into the Agreement. We may amend the User Specifications from time to time without amendment of the Agreement generally for the addition of new user types or changes to the features, functionality and roles applicable to individual user types.
1. Service Access Grant.
1.1 General Grant. Subject to your complete and ongoing compliance with the terms and conditions of the Agreement, and the terms of your subscription to the Service, including payment of the applicable Subscription Fees, Aspire hereby grants to Customer and Customer’s Affiliates (as applicable) for the Term (defined in the applicable Order) a non-exclusive, non-transferable, and limited-term right to electronically access and use the Service solely: (i) for internal business purposes; (ii) in accordance with the Agreement and the user documentation applicable to the Service (the “Documentation”); and (iii) by Authorized Users as defined in Section 4.2. Further, if Aspire provides you with any application programming interface (“API”) or software outside the Service (“Ancillary Software,” and together with the Service (including any Early Access Service), our website(s), Mobile Apps, and Aspire Proprietary AI Materials, “Aspire Technology”), Aspire hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable right to use that Ancillary Software solely in connection with your use of the Service. Your use of Ancillary Software may be subject to additional terms and conditions.
1.2 Consultants. Customer may grant access to the Service to its subcontractors, consultants and agents (collectively, the “Consultants” and each a “Consultant”) to the extent necessary to perform Customer’s obligations under and make use of the Service as contemplated by the Agreement, under terms of confidentiality materially as protective as those set forth herein, provided that (i) Customer is, and shall be, fully responsible and liable for each and every one of its Consultants and each and every act or omission of each of its Consultants, and (ii) Customer shall indemnify, defend and hold Aspire and its Representatives (defined below) harmless from any and all claims, actions, or lawsuits arising out of or related to the acts or omissions of its Consultants.
1.3 No Other Licenses. No rights are granted to Customer hereunder other than as expressly set forth in the Agreement.
1.4 Early Access. If you obtain a subscription to a new feature or add-on to the Service designated by Aspire as “Preview,” “Alpha,” “Beta,” “Early Access” or “Evaluation Services” (each an “Early Access Service”), notwithstanding any other terms to the contrary, Customer may use such Early Access Service only for your internal demonstration, test, or evaluation purposes. Early Access Services and all documentation and information provided by Aspire in connection therewith constitute Aspire Confidential Information. Customer agrees to provide Feedback with respect to any Early Access Service that Aspire makes available to Customer, and the intellectual property rights in or related to such Feedback are as set out in Section 14.5. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASPIRE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND OTHER KINDS OF PROMISES, EXPRESS, IMPLIED, OR STATUTORY FOR EARLY ACCESS SERVICES AND THEY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARLY ACCESS SERVICES HAVE A NON-PERPETUAL, TIME-LIMITED SUBSCRIPTION TERM AND ASPIRE MAY “TIME-OUT” AND DISABLE THE EARLY ACCESS SERVICES OR OTHERWISE DISCONTINUE CUSTOMER’S ACCESS AND USE OF THE EARLY ACCESS SERVICES AT ANY TIME AND FOR ANY REASON WITHOUT PRIOR NOTICE. Customer will not attempt to defeat or circumvent any duration mechanism for the Early Access Service and will not use any Early Access Service beyond the prescribed term of early access. Customer’s use of an Early Access Service may be subject to additional terms and conditions that Customer must agree to when accessing the Early Access Service.
1.5 Open-Source Software. Aspire Technology may contain or be provided together with open-source software. Each item of open-source software is subject to its own license terms. Copyrights to the open-source software are held by the respective copyright holders indicated therein.
1.6 Artificial Intelligence.
From time to time, Aspire may introduce features and capabilities as part of the Service that utilize artificial intelligence, machine learning, large language models, neural networks, predictive analytics, or similar systems or technologies (collectively, "AI"), including features that generate content, recommendations, or AI-assisted automated actions (such features and capabilities, the "AI Tools"). AI Tools also include autonomous and semi-autonomous agent systems, multi-agent orchestration frameworks, retrieval-augmented generation systems, robotic process automation systems that incorporate AI-driven decisioning, and any AI-powered systems that interact with or take actions within third-party platforms or Customer’s data environment. Aspire will use reasonable efforts to identify AI Tools as such in Aspire's product documentation or in the user interface of the Service. AI Tools may utilize proprietary or third-party AI models, and may be updated, modified, or discontinued at any time.
(i) Definitions.
“Input” means any prompts, instructions, queries, configurations, files, or other content provided to or processed through the AI Tools.
"Output" means any content, recommendations, insights, summaries, predictions, classifications, analyses, inferences, text, or other results generated by the AI Tools in response to Inputs.
“Proprietary Derivatives” means any analysis, inference, insight, prediction, recommendation, or other results generated by Aspire Proprietary AI Materials.
"Aspire Proprietary AI Materials" means Aspire's artificial intelligence and machine learning models, model weights and parameters, algorithms, and underlying technology; fine-tuning data and training datasets; system prompts, prompt templates, and prompt-engineering logic; skills, plugins, agents, tools, connectors, and other extensions or configurations that Aspire develops, provides, or makes available as part of or for use with the AI Tools; intermediate processing steps, reasoning chains, and agent execution logs; and benchmarking, evaluation, and performance data, in each case whether now existing or later developed, and to the extent owned or licensed by Aspire, but excluding Customer Data together with all intellectual property rights therein.
(ii) Input and Output.
Use of Input, Generation and Use of Output. Subject to the rights and licenses granted in this Agreement, Input will be used by AI Tools to generate Output. Customer acknowledges that: (1) Output is generated by probabilistic systems, may be inaccurate or incomplete, is not reviewed by Aspire prior to delivery, and Customer is solely responsible for reviewing Output before relying on, publishing, or otherwise using it; and (2) Output may not be unique, and nothing in this Agreement restricts Aspire from generating identical or similar Output for other customers. Customer is solely responsible for ensuring Input is appropriate for AI processing in all respects.
Ownership of Output. Output is owned by Customer to the extent that it is comprised of Customer Data. To the extent that Output contains Proprietary Derivatives, Aspire grants Customer a non-exclusive, worldwide, royalty-free, non-transferable (except in connection with a permitted assignment of this Agreement) license to use, reproduce, modify, and create derivative works of such Output solely for Customer's internal business purposes in connection with its use of the Service. As between the parties, Customer owns any modifications or derivative works it creates from Output, subject to Aspire’s rights in and to any Proprietary Derivatives embodied therein.
(iii) AI Actions. Certain AI Tools may include features capable of executing actions within Customer's Aspire account or in connection with third-party systems integrated with the Service, based on prompts, configurations, authorizations or permissions designated by Customer, including: (1) creating, modifying, or deleting records within Customer's Aspire account; (2) initiating, scheduling, or modifying customer communications (including via email, SMS, or voice); (3) executing transactions, workflows, or automated processes within the Service or connected third-party systems; (4) accessing, retrieving, or transmitting Customer Data; and (5) any other action taken by AI Tools in furtherance of a task designated by or on behalf of Customer (collectively, "AI Actions"). Customer Authorization and Responsibility. By enabling features that include AI Actions, Customer authorizes the execution of AI Actions within Customer's account in accordance with Customer's configuration settings and Aspire's applicable platform policies. Customer is solely responsible for: (1) configuring AI features and designating the scope of tasks assigned to AI Tools; (2) ensuring that Customer's configuration settings appropriately reflect Customer's intended scope of AI Actions; (3) implementing sufficient internal safeguards and human oversight to monitor AI Actions and prevent unintended, unauthorized, or out-of-scope AI Actions from occurring; and (4) reviewing the outcomes of AI Actions for accuracy, completeness, and appropriateness.
(iv) No Independent Aspire Review. Aspire does not independently review individual AI Actions for accuracy, completeness, or fitness for Customer's specific purposes prior to execution. Where the Service requires Customer authorization before executing an AI Action, such authorization is provided by Customer, not by Aspire. Customer acknowledges that AI Actions may produce results that are incorrect, unintended, or based on inaccurate or incomplete data, and that certain AI Actions, once executed, may be difficult or impossible to reverse. Customer assumes all responsibility for outcomes arising from AI Actions executed within Customer's account.
(v) Restrictions. Customer shall not, and shall not permit anyone else to: (1) use Output or any data derived from the AI Tools to develop, train, improve, or benchmark any AI model, system, or technology that competes with the Service or the AI Tools; (2) reverse engineer the prompts, prompt engineering, or underlying logic of the AI Tools; or (3) represent to any third party that Output was human-generated when it was not.
(vi) Reduction of Errors; No Warranties. ASPIRE MAKES COMMERCIALLY REASONABLE EFFORTS TO REDUCE ERRORS AND OMISSIONS ARISING FROM USE OF THE AI TOOLS. ASPIRE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, OR NON-INFRINGEMENT OF THE AI TOOLS, ANY OUTPUT, OR ANY AI ACTIONS, AND DISCLAIMS ALL LIABILITY FOR ERRORS, OMISSIONS, RECOMMENDATIONS, OR ACTIONS BASED ON THE AI TOOLS OR RESULTING FROM CUSTOMER'S USE THEREOF. CUSTOMER ASSUMES ALL RISK AND CONSEQUENCES ASSOCIATED WITH ITS USE OF AI TOOLS, INCLUDING ALL AI ACTIONS AND ALL OUTPUT.
(vii) Third-Party AI Providers. The AI Tools may rely on or incorporate technology from third-party AI service providers. Aspire's or its Affiliates’ agreements with such providers contractually prohibit them from using Customer Data to train their own models.
2. Hosting Arrangement. Customer hereby acknowledges and agrees that the Service is provided through a hosting arrangement with Aspire’s hosting provider. Customer further acknowledges and agrees that, through its access to and use of the Service, Customer may be granted access to, and may use, certain trade secret, intellectual property and proprietary information of the hosting provider, including the coding, skills, know-how, and intellectual property that forms a part of or is used in the hosting services and all modifications and enhancements made thereto during the Term of the Agreement (collectively, the “Hosting Technology”). The Hosting Technology includes an allotment for file upload storage in the monthly subscription per location.
3. Restrictions and Limitations.
3.1 Protected Technology. Customer acknowledges that the Aspire Technology and the Documentation, as well as the structure, organization and source code of the Aspire Technology, and any Hosting Technology, constitute valuable trade secrets/intellectual property of Aspire and the other parties from whom Aspire licenses the same, or any portion thereof (“Aspire’s other licensors”) (all of which constitutes Aspire Property (as defined in Section 14.2 below); such Aspire Property and the Hosting Technology may be collectively referred to as the “Protected Technology”) and that Aspire, through its rights therein, has an interest in the Aspire Property.
3.2 General Restrictions. Accordingly, except as expressly provided for in the Agreement or as approved by Aspire in writing, Customer shall not (and shall not cause any third party to):
(a) modify, adapt, alter, translate, or create derivative works from the Protected Technology;
(b) merge the Protected Technology with any other software or proprietary information;
(c) license, sublicense, lease, rent, loan, sell, resell, assign, distribute, time share, use the Protected Technology to operate a service bureau, otherwise transfer or allow access to, or use of, the Protected Technology by any third party or otherwise commercially exploit the Protected Technology in violation of the Agreement;
(d) use any tool to enable features or functionalities that are otherwise disabled in the Protected Technology, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms for the Protected Technology;
(e) otherwise access or use the Protected Technology or any information, files or data stored in the Protected Technology except as expressly permitted herein;
(f) disclose any information concerning the features or performance of the Protected Technology to anyone other than Aspire or Customer’s Affiliates and/or Consultants as needed for the same to access and/or use the Service;
(g) access or attempt to access any of Aspire’s, its hosting provider’s or any other user’s files, information, systems, programs or data unless granted the right to use or access the same under the Agreement;
(h) permit any third party to benefit from the use or functionality of the Protected Technology;
(i) perform or attempt to perform any action(s) or task(s) that could or would (1) interfere with the proper operation or use of the Protected Technology or any other party’s access to, or use of, the Protected Technology, (2) prevent any party’s access to the Protected Technology, or (3) impose any unreasonable or disproportionately large computing load on the Service system’s infrastructure;
(j) use or access the Protected Technology (1) for any illegal purpose or in violation of any applicable law or regulation, including those relating to privacy, data protection and access to information and (2) without at all times making all disclosures as required thereby (including any required within your privacy policy);
(k) make any copies of Protected Technology for any reason whatsoever;
(l) alter or remove Aspire’s or its Affiliates’ or their respective licensors’ names, trademarks, copyright notices, disclaimers or other restrictive legends on the Protected Technology;
(m) use the Service in violation of any applicable laws, rules or regulations, including laws regulating the collection of debts, including the Fair Debt Collection Practices Act, any applicable advertising and marketing laws including CAN-SPAM, the TCPA, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL), the telemarketing provisions of the Canadian Competition Act, the California Invasion of Privacy Act, the CRTC Unsolicited Telecommunications Rules, including those that relate to (1) permitted calling times, (2) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists), (3) the required content of text messages and requirements for enabling and promptly implementing unsubscribe requests, (4) any registration requirements relating to do not call lists, (5) any notices that need to be given to potential customers during telephone calls, and (6) CTIA’s Messaging Principles and Best Practices, and other applicable state and federal wiretapping laws;
(n) import or transfer to Aspire or the Protected Technology any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, any personal information whatsoever about or regarding children under 18 years of age, or other sensitive or regulated information (for example, Social Security Numbers or Social Insurance Numbers);
(o) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
(p) access the Protected Technology in order to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Protected Technology, or (3) copy any ideas, features, functions or graphics of the Protected Technology;
(q) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or
(r) interfere with security-related features of Protected Technology, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering, disassembling, decompiling, or otherwise attempting to discover the source code of any portion of the Protected Technology except to the extent that the activity is expressly permitted by applicable law, and in such an instance Customer agrees to provide Aspire with prior written notice.
4. Account Information, Authorized Users and Audit and Other Access Rights.
4.1 Account Information. Customer hereby represents and warrants (i) that it has provided true, accurate, current and complete information about itself and its users as part of the registration and agreement process (the “Account Information”), and (ii) that Customer will maintain and will promptly update the Account Information to keep it accurate, current and complete. If Customer has provided, or provides, any Account Information that is inaccurate, not current or incomplete, or Aspire has reasonable grounds to suspect it is inaccurate, not current or incomplete, Aspire may, in its sole discretion, suspend or terminate Customer’s account and/or the Agreement and suspend any and all current or future access to and use of the Service, the other Protected Technology, or any portion thereof upon thirty (30) days’ notice to Customer granting Customer thirty (30) days to bring Account Information into compliance.
4.2 Authorized Users. The Service may be used only by individual users that are natural persons and that have been issued user identification and password credentials (each an “Authorized User”). Customer is solely responsible for (i) determining which users may have access to the Service and maintaining and updating user identification, permissions, and passwords for Authorized Users, and (ii) ensuring that all such users of any User Access Information (as defined below) assigned to Customer’s account are Authorized Users and that all such users comply with the Agreement. If you are a Corporate Entity, you may allow Authorized Users working for your Affiliates to use the Service under your subscription to the Service, as long as the aggregate number of each type of Authorized User does not exceed any limitations specified with respect to your subscription and as long as used in the operation of a single business. You agree that: (i) you will at all times be liable and responsible for all acts and omissions of your Affiliates and Authorized Users that use the Service (including any Authorized Users using the Service on behalf of the Affiliate) as though those acts and omissions were committed by you; and (ii) you agree (and you agree on behalf of your Affiliates) that your Affiliates and their Authorized Users may have access to the data and information accessible by their respective user types and Aspire is not responsible for enforcing any data access restrictions between you and your Affiliates. For purposes of the Agreement “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, Aspire or Customer (as applicable) controls, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies. If you registered for the Service under a name other than the legal name of a business, we may from time to time require you to verify that all subscriptions purchased by you are used only by you and your Affiliates and in the operation of a single business. If an Authorized User is using the Service in connection with the operation of more than one business, you must disclose this fact to us at the time of registration and renewal for the Service, as separate businesses require separate agreements with us. Failure to do so will constitute a breach of your obligations hereunder.
4.3 User Access Information. Customer (and its Authorized Users (for whom Customer is responsible and liable)) is solely responsible for (i) maintaining the confidentiality and security of the user identification(s), password(s), access number(s), license key(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by it and/or its users to access the Service (collectively, “User Access Information”), and (ii) preventing unauthorized access to or use of the Service or the information, files or data that it stores or uses in or with the Service. Customer hereby represents and warrants that all parties accessing the Service through the User Access Information or any other authorized access mechanisms, if any, assigned to Customer’s account are, and will be, Authorized Users, and it agrees and covenants that it shall cause all such Authorized Users to abide by the terms and conditions of the Agreement. Customer shall not share User Access Information with any third party or otherwise permit any third party to access or use Aspire Technology, as further detailed in Section 3. Customer further agrees to immediately notify Aspire if it becomes aware of any loss, theft or unauthorized use of any User Access Information or any unauthorized access or attempted access of the Service or any other Protected Technology. Aspire reserves the right to (i) deny Customer and all of its Authorized Users access to the Service, any other Protected Technology or any part thereof and/or (ii) exercise its right to terminate the Agreement upon thirty (30) days’ notice to Customer by Aspire if any such loss, theft or unauthorized use has occurred or if Aspire reasonably believes that any such loss, theft or unauthorized use or access of User Access Information, the Service, or any other Protected Technology has occurred.
4.4 Access Rights. Aspire hereby reserves the right, for itself and its contractors, agents and/or representatives, including its hosting provider, to access the Service and Customer’s data, files and other information from time to time in order (i) to perform system administration, (ii) to provide maintenance and support services and (iii) to repair, maintain, upgrade, test and/or manage the Service and/or service environment generally.
5. Services.
5.1 Services. During the term of the Agreement, and subject to Customer’s payment of all Subscription Fees, Aspire shall provide the services as set forth in the applicable Order or as otherwise made available to you by Aspire (collectively, “Services”).
5.2 Access to the Service; Modifications to the Service. Aspire does not provide you with the equipment to access the Services. You are responsible for all fees charged by third parties to access the Service (e.g., Internet and/or mobile access charges). You agree and acknowledge that Aspire may update and otherwise change the Service from time to time in its sole discretion, provided that such modifications do not materially degrade any of the functionality or features of the Service to which you have subscribed. Notwithstanding the foregoing, we reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice and we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, except that if we permanently discontinue the Service we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a pro-rated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance.
5.3 Independent Contractor Status. Aspire’s (and its subcontractors’) relationship with Customer will be that of an independent contractor and not an employee or agent of Customer. Nothing in the Agreement shall be interpreted or construed as creating or establishing any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
5.4 Subcontractors. Aspire may retain subcontractors in connection with providing the Protected Technology (including any professional services), and Customer agrees to cooperate with such subcontractors to the same extent that Customer would cooperate with Aspire. Aspire shall remain responsible for performance of its subcontractors to the same extent as if performed by Aspire itself.
6. Fees and Payment Terms.
6.1 Subscription Fees. Customer agrees to pay Aspire fees for accessing and using the Service, support, daily offsite backups, hosting, phone and support via AspireCare™ as set forth in the Order (the “Subscription Fees”). The Subscription Fees will begin to accrue as described in the applicable Order. Aspire reserves the right to change the required method of payment at any time, upon notice to you (including in any invoice). You are responsible for updating your Account Information pursuant to written instructions provided by Aspire should the required payment method change, and you will promptly execute any additional authorizations reasonably required in order to effect such change. Aspire reserves the right to shift the dates of your billing periods from time to time. All fees paid hereunder are non-refundable and non-recoupable. You agree that your purchases under the Agreement are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by us regarding future functionality or features. In addition, some Service features and functionality may require us to engage third-party service providers (e.g., telecom providers) and Customer agrees that any charges imposed on us by such third parties with respect to Customer’s usage or the provision of the Service to Customer (e.g., per-message/SMS fees, regulatory fees or access charges) may be passed through to Customer. Customer will have an opportunity to review the fees that Customer is charged.
6.2 Invoices. Customer shall set up an automated clearing house (“ACH”) monthly draft from the Customer’s bank account for payment of the Subscription Fees. Customer agrees that no work can begin and Aspire will have no obligation to deliver the Service or Services until the ACH program is in place and payment is received by Aspire. Unless otherwise agreed in writing, all payments shall be in U.S. Dollars. All ACH withdrawals will take place on the fifth (5th) of the month for payment of the Subscription Fees for that same month. Aspire reserves the right to change the required payment method at any time upon notice to Customer, and in such an instance, Customer agrees to follow any written instructions provided by Aspire and to promptly provide any required account or other payment information to Aspire as may be requested.
6.3 Aspire’s Right to Audit and Verify Customer Revenue. At any time during the Term, Aspire may access the Service and Customer’s data, files and other information stored therein for the purpose of auditing the calculation of Customer’s Subscription Fees and compliance with the terms of the Agreement. In addition, on thirty (30) days’ notice, during the Term and within 2 years thereafter, Aspire or its representatives may at its own expense audit and copy from Customer’s and its Affiliates’ books, records, and other documents (including computer files and supporting orders and invoices) as necessary to verify the Customer’s and its Affiliates’ adherence to the terms and conditions of the Agreement. Aspire may conduct any audit under this Section at any time during Customer’s regular business hours on business days remotely or at Customer’s principal place of business (at Aspire’s option) and shall not unreasonably interfere with the operation of Customer’s business; provided, however, that Aspire shall not exercise its audit rights under this Section more than once per calendar year and shall provide Customer with prior notice (email acceptable) thereof, except with respect to any audit of Customer Data within the Service, which Aspire may undertake at any time without notice.
Customer and its Affiliates shall reasonably cooperate with Aspire in conducting any such audit at Customer’s sole cost and expense. Aspire and its representatives shall keep all information obtained during any such audit as Customer Confidential Information. Should any such audit reveal that Customer or its Affiliates have, individually or collectively, under-reported, or caused to be under-reported, the Customer Revenue amounts set forth in the applicable Order in an amount that is 5% or greater, Customer shall reimburse Aspire for the reasonable external cost of the audit. Customer agrees to pay any and all amounts determined by any such audit to be owed to Aspire within 10 days of Aspire’s request therefor.
6.4 Non-Payment. Customer agrees that non-payment of Subscription Fees in any one (1) month constitutes a material breach of the Agreement. Upon such material breach, Aspire will notify the Customer (email acceptable) and Customer shall have five (5) days to cure by paying to Aspire all such amounts due. Should the Customer fail to make payment of all such amounts due within such five (5) day cure period, Aspire may, without prejudice to its right to terminate the Agreement pursuant to Section 8.2 below, suspend Customer’s access to the Service until the Customer pays all such amounts due and is in compliance with the terms of the Agreement. Further, amounts invoiced by Aspire but not paid by the applicable due date may incur interest at the rate which is the lesser of (i) 1.5% per month, calculated daily, and compounded monthly, and (ii) the highest rate permitted under applicable law. In addition to the amount due for the Service, a delinquent account will be charged with fees, charges or expenses (including attorneys’ fees) that are incidental to any chargeback or collection of any unpaid amount, including collection fees. Aspire shall not exercise its rights to suspend access to the Service or impose interest under this Section, provided Customer disputes applicable unpaid charges reasonably and in good faith, provides Aspire with written notice of any such good faith dispute within thirty (30) days from the date of the corresponding Aspire invoice, and cooperates actively and diligently to resolve the dispute.
To the extent that you or your Affiliates have other agreements in place with Aspire or its Affiliates, you acknowledge and agree that, notwithstanding the terms of such other agreements, or the original authorization(s) provided to Aspire to process payment thereunder via ACH or another payment method, you, on behalf of yourself and your Affiliates, hereby authorize Aspire to any time upon prior notice to you (email acceptable) migrate payment of any or all amounts due and payable to Aspire or its Affiliates under any or all of those other agreements to the payment method in place under the Agreement or any other agreement you have in place with Aspire or its Affiliates.
6.5 Additional Amounts Payable; Authorizations. Aspire may make available for activation by Customer and its Authorized Users within Aspire Technology certain subscription services that would be new to Customer’s account (as well as the capability to purchase certain hardware) and Customer represents, warrants, covenants, and agrees that the individual designated by Aspire as the primary contact for Customer’s account, as well as any and all individuals with the “General Manager,” “Administrator,” or “Business Owner” designation under Customer’s account within Aspire Technology are authorized to bind Customer to the applicable terms and conditions for such additional subscription services and purchases, and Customer hereby agrees to pay all applicable fees and charges with respect thereto.
7. Taxes and Charges. Aspire may be required to charge sales or other tax on products, services and other amounts charged under this Agreement pursuant to certain foreign, federal, state, provincial and local laws, and may pass through regulatory, access, or usage fees or charges. Estimated or final taxes along with applicable fees and charges are not included in the fees and charges charged under the Agreement and Customer will be responsible for payment of all such taxes (other than taxes based on Aspire’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Service fees, including any training fees and/or renewal fees. Customer will make all payments to Aspire free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Service fees to Aspire will be Customer’s sole responsibility, and Customer will provide Aspire with official receipts issued by the appropriate taxing authority, or such other evidence as Aspire may reasonably request, to establish that such taxes have been paid. Customer must claim any exemption for all applicable taxes, fees, or charges at the time of purchase and provide any/all exemption certifications and email documentation to billing@youraspire.com. Aspire reserves the right to determine the applicability of any claimed exemptions, and any disputes over exemptions shall be subject to the dispute resolution provisions of these Terms.
Customer is solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges and additional charges that arise from any sale of Customer’s products or services to Customer’s clients (“End Clients") and any other business transactions between Customer and End Clients using the Service. Any contract of sale made through the Service is directly between Customer and the End Client.
8. Term and Termination.
8.1 Term. The Agreement is effective upon your registration for a Service subscription by entering into an Order that incorporates these terms and it shall remain in effect for the term specified in each such Order, commencing upon the Subscription Start Date specified in the Order, or if no Subscription Start Date is specified, commencing upon the date that Customer begins to incur Subscription Fees; provided that with respect to any Order that does not specify a term duration, the initial committed term of such Order shall be three (3) years, and thereafter, unless otherwise specified in the Order, the Agreement will continue on a month to month basis and may be terminated by either party upon ninety (90) days’ prior written notice (“Term”). Except as otherwise explicitly set forth in an Order, either party may elect not to renew the Term of the Agreement upon not less than thirty (30) days’ written notice to the other. Upon termination, your access to the Service and any information stored by the Service will also terminate.
8.2 Termination for Cause. A party shall have the right to terminate the Agreement by written notice to the other party if the other party materially breaches any of its obligations hereunder and does not cure such breach within thirty (30) days of receipt of written notice of such breach.
8.3 Suspension. You agree to refrain from the following actions (which each constitute a material breach of the Agreement) and we may immediately, without notice, suspend your access to the Service if: (i) you breach any provision of the Agreement; (ii) you seek to hack the security mechanisms of the Service or we otherwise determine that your use of the Service poses a security risk to us or to another user of the Service; (iii) you introduce a malicious program into the network or a virtual machine instance; (iv) you cause network interference that affects Service performance for other customers; (v) you use the Service in a way that we determine, in our sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party. Your access will be restored only if and when the reason for the suspension is resolved.
8.4 Mutual Termination. Either party may terminate the Agreement, effective upon written notice to the other party, if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.5 Effect of Termination.
8.5.1 Payment of Remaining Fees. Upon termination of the Agreement for any reason, any amounts owed to Aspire will be immediately due and payable.
8.5.2 Termination Fees. If, at any time during the Term, Aspire terminates the Agreement for cause or Customer terminates the Agreement for any reason other than for cause, Customer shall pay a termination fee equal to all the remaining payments, and Customer and Aspire agree that such termination fee is based on an agreed minimum usage commitment by Customer and is not a penalty.
8.5.3 Return of Confidential Information. In addition to the foregoing, upon termination or expiration of the Agreement, each of Customer and Aspire will, upon the written request of the other party, return Confidential Information (as defined in Section 15) in its possession in the format mutually agreed.
8.5.4 Suspension of Use. Immediately upon termination of the Agreement, Customer’s access to, and use of, the Service shall terminate.
8.5.5 Customer Data and Export Period. Aspire will, upon termination or expiration of the Agreement for any reason, and at Customer’s written request, and subject to any specific restrictions applicable to Customer or Customer Data, use commercially reasonable efforts to export and provide to Customer in electronic format the Customer Data in Customer’s account (service fees may apply). Aspire makes no representation as to the integrity, completeness or timeliness of any data so exported, and Aspire is not obligated to retain that information for greater than 60 days after any termination (“Export Period”). After such Export Period and subject to Aspire’s legal obligations with respect to access and rectification of personal information, Aspire has no obligation to maintain or provide any Customer Data and shall be entitled to, except to the extent legally prohibited, delete Customer Data by deleting Customer’s account; provided, however, that Aspire will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Aspire will continue to protect the Customer Data in accordance with the Agreement. Customer Data will be made available to authorized points of contact in a Microsoft SQL server backup format (.BAK), standard Microsoft Tape Format (.MTF), or such other format as determined by Aspire.
8.5.6 Survival. All provisions of these Terms which by their nature should survive termination, shall survive termination, including Sections 3, 6, 7, 8, 10 through 38 and Attachment 1 hereto.
9. Customer’s Obligations.
9.1 Service Obligations. Customer understands that successful performance of Aspire’s obligations under the Agreement is expressly conditioned upon Customer’s timely performance of its obligations set forth herein, in accordance with the timelines set forth, including, but not limited to, Customer’s provision of a computing and network environment meeting the specifications for the Service. Customer agrees and understands that any delay not caused by Aspire (i) will relieve Aspire of its obligations to meet timelines to the extent of such delay and (ii) may result in increased fees payable to Aspire to cover costs arising from such delay.
10. Performance Commitments.
10.1 Performance. Aspire will use commercially reasonable efforts to correct any reproducible defect or limitation in the Service that causes the Service to fail to materially perform in accordance with the limited warranty set forth in Section 10.2 below when Customer uses or operates the Service in accordance with the Service’s knowledge base and Documentation as made available by Aspire to Customer from time to time.
10.2 Warranties; Disclaimer. ASPIRE WARRANTS THAT THE SERVICE WILL, DURING THE TERM OF YOUR SUBSCRIPTION, MATERIALLY CONFORM TO ANY DESCRIPTION OF THE SERVICE PUBLISHED BY ASPIRE. AS ASPIRE’S SOLE AND EXCLUSIVE LIABILITY FOR BREACH OF THIS LIMITED WARRANTY, AND YOUR SOLE AND EXCLUSIVE REMEDY, ASPIRE WILL MAKE REASONABLE EFFORTS TO CORRECT THE MATERIAL NON-CONFORMITY AFTER ASPIRE’S RECEIPT OF WRITTEN NOTICE THEREOF FROM YOU. THE EXPRESS LIMITED WARRANTIES MADE BY ASPIRE HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE, ANY PROFESSIONAL SERVICES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT, AND TO THE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASPIRE, ITS AFFILIATES, ITS LICENSORS, HOSTING PROVIDER, DISTRIBUTORS, DEALERS, SUPPLIERS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, “REPRESENTATIVES”) DISCLAIM ANY AND ALL SUCH GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE, THE OTHER PROTECTED TECHNOLOGY AND/OR THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE SERVICE, ANY PROFESSIONAL SERVICES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ASPIRE DOES NOT WARRANT OR GUARANTEE CONTINUOUS OR UNINTERRUPTED USE OF, OR ACCESS TO, THE SERVICE OR THAT THE SERVICE WILL BE FREE FROM BUGS, VIRUSES OR OTHER HARMFUL COMPONENTS, INTERRUPTION, ERRORS, OR ANY OTHER PROGRAM LIMITATIONS, OR THAT CUSTOMER’S OR ITS AFFILIATES’ USE OF THE SERVICE WILL COMPLY WITH ALL LAWS, RULES, OR REGULATIONS APPLICABLE TO CUSTOMER OR ITS AFFILIATES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASPIRE OR ANY OF ITS REPRESENTATIVES SHALL INCREASE THE SCOPE OF ANY WARRANTIES OR CREATE ANY NEW WARRANTIES. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA (INCLUDING BACKUPS), INCLUDING CUSTOMER DATA AND CONTENT. YOU ACKNOWLEDGE THAT THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT WE WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK.
THE ASPIRE SERVICE IS PROVIDED AS A PLATFORM FOR CONFIGURATION AND USE BY CUSTOMER, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING CUSTOMER’S CONFIGURATION AND USE OF THE SERVICE COMPLIES WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS. SUBJECT TO THE FOREGOING, ASPIRE MAY, FOR INFORMATIONAL PURPOSES ONLY, MAKE SUGGESTIONS TO CUSTOMER WITH RESPECT TO THE CONFIGURATION OF CUSTOMER’S INSTANCE OF THE SERVICE, BASED ON BEST PRACTICES OR OTHERWISE.
11. Privacy Laws.
11.1 To the extent that Aspire processes any personal data on the Customer’s behalf and in accordance with its instructions as part of or in connection with the performance of the Services, the Parties agree that the Data Protection Addendum (“DPA”) set forth at https://www.youraspire.com/legal/data-protection-addendum shall apply and shall be deemed as an integrated part of the Agreement.
11.2 ASPIRE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S ACCESS TO, OR USE OF, THE SERVICE, ANY PROFESSIONAL SERVICES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT NEITHER THE SERVICE NOR ASPIRE WILL ASSIST WITH OR ENSURE COMPLIANCE WITH ANY APPLICABLE PRIVACY LAWS, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND FOR USING THE SERVICE AND RELATED SERVICES AND CONTENT IN A MANNER CONSISTENT WITH ALL APPLICABLE PRIVACY LAWS.
12. Indemnification by Customer. Customer hereby agrees to indemnify, defend and hold Aspire and its Representatives (collectively, the “Aspire Entities”) harmless from and against every claim brought by a third party, and any related liabilities, losses, damages, costs and expenses, including reasonable outside attorneys’ fees and court costs, arising from, connected with, or related to: (a) Customer’s or any of its Authorized Users’ (including, but not limited to, its Consultants’) access, use or misuse of the Service or the Protected Technology, or any attempt to do any of the foregoing; (b) any unauthorized access or use of the Protected Technology through any of user identification(s), passwords or other User Access Information assigned to Customer’s account; (c) breach of or failure by Customer (or any of its Authorized Users, Affiliates, or Consultants) to comply with (i) any portion of the Agreement, including its representations, warranties, covenants and obligations, (ii) any representation, warranty, or agreement referenced in the Agreement, or (iii) any applicable law, rule or regulation; (d) Customer’s or any Authorized User’s violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with Customer’s use of the Protected Technology or any data (including the Customer Data), materials or information Customer provides in the Service; (e) Customer’s use of the AI Tools, including Customer’s violation of any applicable law or third party right in connection with Outputs generated through such use, or (f) any dispute or issue between Customer and any third party, including but not limited to any expenses for chargebacks, fines or fees for which Aspire becomes liable as a result of Customer’s usage of Payments, except to the extent directly caused by any gross negligence or willful misconduct on the part of Aspire or material defect with Payments. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims. You will not settle or compromise any such claim without our prior written consent.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ASPIRE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION, OR ANY OTHER INTANGIBLE LOSS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE OR ARISING OUT OF OR WITH RESPECT TO ANY PRODUCTS OR SERVICES, INCLUDING PROFESSIONAL SERVICES, PROVIDED BY ASPIRE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ASPIRE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF THE ASPIRE ENTITIES TO YOU FOR ANY CLAIM OR CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT AND/OR THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THE AGREEMENT, INCLUDING ANY PROFESSIONAL SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ASPIRE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; AND (B) $100.
EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE AN INDIVIDUAL USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “WARRANTIES; DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
14. Proprietary Rights and Aspire Property; Data.
14.1 Ownership. The Protected Technology, the Documentation, the Aspire Property (as defined below) and all modifications or derivative works of the foregoing, including all worldwide copyrights, trade secrets, patents, patent applications, and other proprietary rights therein are the exclusive property of Aspire and/or Aspire’s licensors. Customer hereby acknowledges that nothing in the Agreement shall give Customer any right, title, or interest in or to the Protected Technology, or any intellectual property that forms a part thereof, except as expressly provided herein. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) on any Protected Technology, Documentation, or on any data output or report generated by the Service. As between the parties, (i) Customer owns and retains all right, title, and interest in and to all Customer Data, including all intellectual property rights therein, and (ii) Aspire owns and retains all right, title, and interest in and to Aggregate Data, AI Tools, Proprietary Derivatives, and Usage Data, including all intellectual property rights therein.
14.2 Aspire Property. “Aspire Property” means any work, ideas, inventions, discoveries, software, scripts, processes and improvements, computer processes, specifications, operating instructions, notes, training material and any other documentation (whether or not patentable) owned by, or developed by, Aspire, Aspire’s other licensors, or their Affiliates, including enhancements, improvements or modifications thereto generated during the Term, whether or not during the course of providing any Services, used to satisfy Aspire’s obligations under the Agreement.
14.3 Trademarks. The Aspire name and logos, the names and logos of Aspire’s Affiliates, the domain names of Aspire and its Affiliates, the product and service names associated with the Service and any other Service related trademarks and/or service marks are trademarks and service marks of Aspire and its Affiliates (collectively the “Aspire Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Aspire. Nothing in the Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Aspire Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Aspire Trademarks will inure to our exclusive benefit.
14.4 Data.
(i) Definitions.
"Aggregate Data" means Customer Data that has been de-identified and combined or compiled with other data such that it cannot reasonably be used to directly identify a specific individual or Customer.
“Customer Data” means electronic data or information or business data submitted to the Service by Customer or any Authorized User or directly created by any such person for Customer’s use in connection with the use of the Service, including Inputs, but excluding Aggregate Data.
“Usage Data" means data and information collected or generated by Aspire in connection with Customer's and its Authorized Users' access to and use of Aspire Technology, including registration data, log and session data, feature and functionality usage statistics, performance and diagnostic data, configuration and settings data, metadata, clickstream data, API call volumes, error rates, user interaction and response data (including acceptance, rejection, or modification of Service-generated recommendations or actions), recommendation accuracy and other performance metrics of Aspire Technology, and other technical or operational data relating to the use, performance, or operation of Aspire Technology or generated by Aspire Technology in the course of its technical or functional operation. Aspire will not disclose Usage Data to third parties in a form that identifies Customer except as may be required by law or legal process.
(ii) License to Customer Data. You hereby grant us a non-exclusive, non-sublicensable (except to service providers and subcontractors providing services to Aspire), transferable, worldwide, royalty-free, irrevocable license, during the term of the Agreement and through the end of the Export Period, to host, store, process, use, reproduce, modify, transmit, display, distribute and otherwise exploit Customer Data, on an internal basis (including through subcontractors) and subject to Aspire’s obligations of non-disclosure in Section 15, to (1) provide, maintain, secure, and improve the Service, (2) train, tune, and improve AI models solely to provide the Service to Customer, and (3) create Aggregate Data. Aspire will not (1) use Customer Data to train AI models for the benefit of any third party or any model made generally available to other customers or (2) attempt to re-identify Aggregate Data.
(iii) Processing of Customer Data. Subject to the terms of the Agreement, you may upload Customer Data to the Service and link other services to the Service to integrate your Customer Data from those other services. You may only upload text, photographs, videos, or other audiovisual or informational content (collectively, “Content”) to the Service if you own the rights to that Content, or if another rights holder has given you permission.
(iv) Franchisee Data. Notwithstanding anything to the contrary set forth herein, to the extent that any of your instances within Aspire Technology, or the business information held within any such instance, are part of a franchise, and you operate such business as a franchisee: Except as otherwise provided in your agreement(s) with the applicable franchisor, your franchisor, and not you, owns all Customer Data. Further, you irrevocably agree that Aspire may: disclose and grant franchisor access to all such Customer Data; grant franchisor administrative access to your accounts within Aspire Technology; permit franchisor to export, transfer, or otherwise access with administrative permissions your account within Aspire Technology and the Customer Data therein without further notice to you; and/or suspend your access to your account or cease the provision of any franchisor-related pricing to you (irrespective of whether such pricing is committed in an executed agreement or order form). You agree not to seek any mass export of Customer Data related to your franchise business(es) without the prior consent of the applicable franchisor.
14.5 Feedback. If Customer provides feedback, comments, suggestions, or recommendations to us regarding the Protected Technology or Aspire’s website (“Feedback”), Customer authorizes Aspire to use that Feedback without restriction and without payment to Customer. Accordingly, Customer hereby grants to Aspire a non-exclusive, fully-paid, royalty-free, perpetual and irrevocable license to exploit the Feedback in any manner and for any purpose.
15. Confidentiality.
For the purposes of the Agreement “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes non-public information or material you upload to the Service (including Customer Data). The Confidential Information of Aspire includes the Protected Technology and the terms and conditions of the Agreement, all Orders, purchase orders and other ordering documentation (including pricing) and the proprietary materials provided to Customer in the course of Customer's implementation, including, but not limited to, guides, product descriptions and configuration tools (the "Materials"). The Materials are confidential and proprietary to Aspire and Customer may use them solely for the purpose of transitioning to and implementing the Service. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
During the Term of the Agreement and for a period of five (5) years thereafter, the Receiving Party agrees to retain in confidence and to refrain from disclosing and/or using for its benefit or the benefit of any third party, any or all Confidential Information of the Disclosing Party. The restrictions of this Section 15 shall not apply to information: (i) which is or becomes public knowledge (through no fault of the Receiving Party or its representatives); (ii) which is lawfully made available to the Receiving Party by an independent third party (and such lawful availability can be properly demonstrated by the Receiving Party); (iii) which is already in the Receiving Party’s possession at the time of initial receipt from the Disclosing Party (and such prior possession can be properly demonstrated by the Receiving Party); (iv) which is independently developed by the Receiving Party or its representatives (and such independent development can be properly demonstrated by the Receiving Party); or (v) which is required by law, regulation, rule, act or order of any governmental authority or agency to be disclosed by the Receiving Party, provided however, that the Receiving Party, except where prohibited by law or legal order, gives the Disclosing Party reasonable advance written notice to permit it to seek a protective order or other similar order with respect to such information and thereafter the Receiving Party discloses only the minimum Confidential Information required to be disclosed in order to comply, whether or not a protective order or other similar order is obtained by the Disclosing Party. Further, if Customer registers for the Service through a referral or other promotional partner or through an industry or trade group with whom Aspire has a commercial relationship, Aspire may disclose information about Customer’s account to that referral partner or industry group in connection with that commercial relationship. Except to the extent required for compliance with applicable law, Aspire will not directly contact Customer’s customers (other than in the ordinary course of business not related to the Agreement) or make personally identifying or contact data regarding Customer’s customers available to any third party without Customer’s consent. Such consent will be deemed given, however, in the event that Customer accesses the Service or its Aspire data through a third party application, solely with respect to disclosure in connection with Customer’s use of such third party application. In addition, Aspire may disclose Customer’s Confidential Information if Aspire reasonably determines that disclosure is necessary to prevent harm to Aspire or any third party.
Receiving Party shall take reasonable measures to protect the secrecy of and avoid unauthorized disclosure and use of the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party shall take at least those measures that it employs to protect its own Confidential Information of a similar nature (but in no event less than a commercially reasonable standard of care) and shall ensure that its representatives who have access to Confidential Information of Disclosing Party have signed a nonuse and nondisclosure agreement in content at least as protective of Disclosing Party’s Confidential Information as the provisions of the Agreement, prior to any disclosure of Confidential Information to such Receiving Party. The Receiving Party shall reproduce Disclosing Party’s proprietary rights notices on any copies made by the Receiving Party in the same manner in which such notices were set forth in or on the original Confidential Information.
16. Publicity. Notwithstanding Section 15 of these Terms, Customer agrees that Aspire may use Customer’s name, logo, and marks to identify Customer as a user of the Service on its website and in marketing materials. Customer agrees that Aspire may also utilize Customer Data for purposes of producing and presenting benchmark reports and similar data analysis for its business purposes, provided such data is not identified as belonging to Customer. In addition, Aspire and Customer will, at Aspire’s option, cooperate with each other with respect to the drafting, approval and issuance of a press release or other public announcement related to Customer’s use of the Service. However, neither party will release any information about the terms of the Agreement without the other party’s prior written consent except that either party may make any disclosures concerning the Agreement or its business relationship with the other party that are, in the opinion of its counsel, required under any laws or regulations to which such party may be subject.
17. Exclusivity. Customer acknowledges that the Subscription Fees payable under the Agreement are calculated based on Customer's reported revenue generated through the use of the Service, and that Aspire relies on the completeness and accuracy of such reported revenue in determining Customer's Subscription Fees. To ensure the integrity of this revenue-based pricing model, Customer agrees that during the Term, Customer shall use the Service as its exclusive field service management and invoicing platform for Customer's landscape business.
18. Notices. Except as otherwise expressly set forth in the Agreement, any notice required or permitted to be given in accordance with the Agreement will be effective if it is in writing and sent by postal mail or insured courier (in each case with delivery confirmation), to the appropriate parties at the addresses set forth below for Aspire and at the Customer address set forth in the applicable Order, each with the appropriate postage affixed. Alternatively, Aspire may transmit notices to you via email to the email address specified in your account. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon delivery to the designated address.
Aspire, LLC
390 S Woods Mill Road Suite 300
Chesterfield, MO 63017
Attn: Legal
with a copy (which shall not constitute notice) to:
ServiceTitan, Inc.
800 N. Brand Blvd., Suite 100
Glendale, CA 91203
ATTN: Legal
19. Assignment. Customer may not assign the Agreement or any right, duty, or obligation under the Agreement, without Aspire’s prior written consent, including to any acquirer of Customer’s business. If consent is given, the Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer any right, duty, or obligation under the Agreement except as expressly provided in the Agreement is void. Aspire may assign the Agreement or any right, duty, or obligation under the Agreement, at any time without Customer’s consent.
In the event that Customer acquires other businesses or entities after the date of the Agreement, the employees and contractors of such businesses or entities may constitute Authorized Users under the Agreement only if such businesses are not Aspire customers at the time of acquisition ("Non-Aspire Acquisitions"). In the event that Customer acquires other businesses or entities after the date of the Agreement that at the time of acquisition are Aspire Customers (“Aspire Acquisitions”), all agreements between Aspire and the Aspire Acquisitions (“Acquired Entity Agreements”) shall continue in full force and effect in accordance with their terms. Nothing in this Section shall be construed to allow the terms of any Acquired Entity Agreement to be assigned to or applicable to Customer, its affiliates or any other business or entity. Customer will provide prompt written notice to Aspire in the event of any Non-Aspire Acquisition or Aspire Acquisition. Before any employee or contractor of a Non-Aspire Acquisition first accesses the Service (the date of such first access, the "Addition Date"), Customer shall report to Aspire the trailing twelve (12) months of gross revenue of such Non-Aspire Acquisition as of the date of acquisition, excluding any such revenue already included in Customer Revenue (as defined in the applicable Order) for the then-current year of the Order ("Non-Aspire Acquisition Revenue"). Notwithstanding anything to the contrary, effective as of the Addition Date, Customer Revenue for the then-current year of the Order shall be increased by the Non-Aspire Acquisition Revenue, and Customer shall pay the resulting increased fees, prorated from the Addition Date. Thereafter, such Non-Aspire Acquisition's gross revenue shall be included in Customer Revenue for each subsequent year of the Order. If Customer fails to timely report, Customer shall do so within ten (10) days after Aspire's request (email acceptable), and the increased fees shall still apply from the Addition Date. Aspire may verify such information under Section 6.3.
In the event that Customer desires to include an Aspire Acquisition under the terms of an Order, and Aspire agrees in writing to permit the same, Customer must, as a prerequisite, provide written notice to Aspire regarding such Aspire Acquisition and report the Aspire Acquisition Revenue (as defined below) with respect to such Aspire Acquisition, and the fees under such Order will be equitably adjusted from the date of such written notice (with such adjustment to take effect on the first billing date thereafter), along with an equitable extension of the then-current Initial Term or Renewal Term (each as defined in the Order), as applicable, to ensure the aggregate fee commitments under such Order include those under the applicable Acquired Entity Agreements. With respect to Aspire core software fees, Aspire reserves the right to equitably adjust both Customer Revenue and Annual Fixed Fee (each as defined in the Order) in accordance with the foregoing. “Aspire Acquisition Revenue” means the trailing twelve (12) months of gross revenue of such Aspire Acquisition as of the date of acquisition. Notwithstanding anything to the contrary, Customer shall not be double billed for the same revenue under both the Order and an Acquired Entity Agreement; accordingly, Aspire shall not include in Customer Revenue (as defined in the applicable Order) any revenue for which fees have already been charged under the applicable Acquired Entity Agreement for the same period.
20. Consenting to Do Business Electronically; Electronic Communications. The decision whether to do business and to access the Service electronically is Customer’s, and Customer should consider whether it has the required hardware and software capabilities to use the Service as such requirements have been provided to it by Aspire and whether Customer wishes to take, and assume, the inherent risks associated therewith. Customer’s consent to do business electronically and Aspire’s agreement to do so covers all transactions Customer conducts with Aspire with respect to the Service and/or Services during the Term. Customer consents to do business with Aspire and access the Service electronically by entering into the Agreement.
(a) By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy and this Section 20. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
(b) By entering into the Agreement, you agree on behalf of yourself and any of your employees and contractors to receive calls and text messages from Aspire and persons acting on our behalf at the telephone numbers you or they provided to us. You understand and agree that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning your account, communications regarding the Service, professional services, and marketing communications. Standard text messaging rates will apply. This agreement to receive promotional calls and texts is not a condition of any purchase or of use of the Service.
(c) We and our affiliates and third party service providers may also communicate with you by email and push notifications in our Mobile Apps.
21. U.S. Government End Users. The Service and the Documentation constitute a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service with only those rights set forth herein.
22. International Use; Export Regulations; Anti-Corruption. The Service is intended for use within the United States and Canada. We make no representation or warranty that the Service is appropriate or available for use or will function outside of the United States and Canada. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Customer covenants that it shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Aspire under this Agreement to any destination, entity, or person or for any use prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to indemnify, to the fullest extent permitted by law, Aspire from and against any fines or penalties that may arise as a result of Customer’s breach of this provision. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify us at legalinquiry@servicetitan.com.
23. Force Majeure. A “Force Majeure Event” means any unforeseeable event beyond a party’s reasonable control, including, but not limited to, acts of war, acts of God, fire, floods, earthquake, pandemic or epidemic, extreme weather conditions, embargo, riot, strikes, sabotage, terrorist acts, or omissions or delays in acting by any governmental authority. Any delay in the performance of any duties or obligations of either party (other than the obligation to pay money) will not be considered a breach of the Agreement if such delay is caused by any Force Majeure Event; provided that such party uses reasonable efforts under the circumstances to notify the other party of the circumstances causing the delay and resumes performance as soon as possible.
24. Compliance with Laws and Other Agreements. You represent and warrant (i) that the execution, delivery or performance by you of this Agreement will not result in a breach of, or constitute a default under, or contravene any provisions of, any agreement or instrument to which you are a party or by which you are bound; (ii) that you will at all times comply with all applicable foreign, federal, state, provincial, and local laws, rules, and regulations, including those relating to privacy, data protection and access to information, when using Aspire Technology (including any Aspire Technology that you place on any website), and (iii) that you will have sole responsibility at all times for making all disclosures (including any required within your privacy policy) and obtaining all consents as required thereby. For example, you are responsible for complying with all telephone recording and wiretapping laws and requirements, including notifying parties that telephone calls are being recorded when required and/or satisfying any notification and consent requirements imposed under applicable wiretapping laws. You are also responsible for complying with all applicable laws, rules, and regulations regarding the placement of telephone calls and the sending of text messages, including the Telephone Consumer Protection Act (TCPA), and the telemarketing provisions of the Canadian Competition Act and Canada’s Anti-Spam Legislation (CASL). You understand that you (and not Aspire) control the content, timing, and recipients of any telephone calls and text messages sent through Aspire Technology. If you use Marketing Pro or other advertising features, additional privacy and opt-out obligations apply as set forth in the Marketing Pro Additional Terms. You agree to ensure that all voice calls, text messages and any other commercial electronic messages you send or permit to be sent using any Aspire service or platform are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanism, to the extent required.
25. Injunctive Relief. The parties agree that a breach of Sections 1, 3, 15 or 16, or of the scope of any of the rights or licenses granted hereunder, may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and such party is therefore entitled to seek injunctive relief as well as such other relief as may be appropriate.
26. Governing Law. All questions concerning the validity, operation, interpretation, and construction of the Agreement will be governed by and determined in accordance with the laws of the State of Delaware, excluding any choice of law rules, which may direct the application of the laws of another jurisdiction. Customer and Aspire hereby irrevocably and unconditionally submit to the personal and exclusive jurisdiction of the state and federal courts located within New Castle County, Delaware, for resolution of any lawsuit or court proceeding permitted under the Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Agreement.
27. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS CUSTOMER’S RIGHTS.
Agreement to Arbitrate. This Section 27 is referred to as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and Aspire, whether arising out of or relating to the Agreement, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer claims qualify. Customer agrees that, by agreeing to this Arbitration Agreement, Customer and Aspire are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. Each party’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and Aspire agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and Aspire agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). The terms of the foregoing paragraph shall be referred to herein as the “Class Action Waiver.”
Pre-Arbitration Dispute Resolution. Aspire is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing your designated Aspire customer support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Aspire should be sent to Aspire, LLC, 390 S. Woods Mill Road, Suite 300, Chesterfield, MO 63017, ATTN: Legal, with a copy (which shall not constitute notice) to ServiceTitan, Inc., 800 N. Brand Blvd., Suite 100, Glendale, CA 91203, ATTN: Legal. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Aspire and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Aspire or Customer may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Aspire or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Aspire is entitled.
Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. Any arbitration hearing will take place at a location to be agreed upon in Washington D.C.; if the parties are unable to agree on a location within Washington D.C., the determination shall be made by AAA. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. If Customer’s claim is for $10,000 or less, Aspire agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than the Class Action Waiver is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the Class Action Waiver are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Agreement will continue to apply.
28. Severability. If a court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement shall remain in full force and effect. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision shall be deemed not to be a part of the Agreement, while the remainder of the Agreement shall remain in full force and effect. However, if in Aspire’s opinion deletion of any provisions of the Agreement by operation of this paragraph unreasonably compromises the rights or liabilities of Aspire or any of Aspire’s other licensors, Aspire reserves the right to terminate the Agreement and provide a pro-rata refund of any pre-paid fee(s) to Customer as Customer’s sole and exclusive remedy and Aspire’s sole liability.
29. Privacy Policy. The Service collects information that you specifically and knowingly provide, and uses technological measures to collect information about you and your use of the Service. We may additionally collect information about you from third-party sources in connection with your use of the Service. By using the Service, you consent to the collection, use, disclosure and retention of personal information by or on behalf of Aspire as explained in the Aspire Privacy Policy (https://www.youraspire.com/privacy-statement) (the “Privacy Policy”), as revised from time to time, and as otherwise permitted by applicable law. Subject to the foregoing, to the extent we process your data or your customers’ data on your behalf in our capacity as a service provider, the terms of the DPA will apply to such processing activities.
30. Application Programming Interface. As part of the Services, Aspire may provide Customer with one or more APIs. In addition to the restrictions set forth above with respect to Customer’s use of the Service, Customer’s access and use of APIs shall at all times be subject to and conditioned upon Customer’s compliance with Aspire’s API Terms of Use located at https://www.youraspire.com/legal/api-terms and incorporated herein by reference.
31. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, product documentation, published materials or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, the Agreement. Without limiting the foregoing, your use of certain Aspire products shall be subject to the product-specific terms and conditions set forth on Attachment 1 hereto, which are incorporated by reference into the Agreement.
32. Entire Agreement; Modifications. The Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over the terms of any quote, purchase order, acknowledgment, or like document issued by Customer, all of which are void and shall be of no force or effect. No employee, agent, or other representative of Aspire has any authority to bind Aspire with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in the Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. Aspire will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the Agreement (whether or not it would materially alter the Agreement) that is proffered by Customer in any receipt, acceptance, purchase order, confirmation, correspondence, Customer procurement portal or similar location, or otherwise, and all such terms or conditions are hereby rejected and shall be null and void, regardless of whether such purchase order, procurement or order documentation or other documentation is executed by the parties.
33. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
34. Third-Party Services and Websites.
(a) Third-Party Services. The Service may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (each a “Third-Party Service”). Customer’s access and use of Third-Party Services may be subject to additional terms and conditions, privacy policies, or other agreements with such third parties, and Customer may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Certain Third-Party Services will provide Aspire with access to certain information that Customer has provided to third parties, including through such Third-Party Services, and Aspire will use, store and disclose such information in accordance with Aspire’s Privacy Policy and/or the DPA, as applicable. In addition, certain Third-Party Services may operate in conjunction with the Service, such as by exchanging data with the Service. For more information about the implications of activating Third-Party Services and Aspire’s use, storage and disclosure of information related to Customer and Customer’s use of such Third-Party Services within the Service, please see Aspire’s Privacy Policy. Aspire has no control over and is not responsible for such Third-Party Services, including with respect to the accuracy, availability, reliability, or completeness of information or content generated or shared by, or made available through, such Third-Party Services, or on the privacy practices of Third-Party Services. Aspire encourages Customer to review the privacy policies of the third parties providing Third-Party Services prior to using such services. Customer, and not Aspire, will be responsible for any and all costs and charges associated with Customer’s use of any Third-Party Services. Aspire enables these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation - Aspire does not make any representations or warranties regarding any such Third-Party Services, whether or not such products or services are designated by us as “certified,” “validated,” “supported” or otherwise. Any dealings Customer has with third parties while using the Service are between Customer and the third party. Aspire will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Services. Aspire may terminate the interconnectivity between any Third-Party Service and the Service at any time for any reason, including changes in interoperability requirements, policies or fees charged by such Third-Party Services to Aspire or its customers.
(b) Google Maps. Google Maps presented to Customer through the Service are powered by Google. Customer’s use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the Service, Customer is agreeing to be bound by such terms.
(c) Additional Third-Party Services. Certain additional terms that apply to Customer’s use of Third-Party Services within certain features or functionality of the Service are attached to the Agreement. If Customer accesses or uses those features or functionality, Customer hereby agrees to those additional terms.
35. Third-Party Distribution Channels.
(a) Distribution Channels. This Section 35 only applies to the extent Customer is using Aspire’s Mobile App on a mobile device. Aspire makes available its Mobile App through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If Customer obtains Aspire’s Mobile App through a Distribution Channel, Customer may be subject to additional terms of the Distribution Channel. The Agreement is between Customer and Aspire only, and not with the Distribution Channel. To the extent that Customer utilizes any other third-party products and services in connection with Customer’s use of the Service, Customer agrees to comply with all applicable terms of any agreement for such third-party products and services.
(b) Apple-Enabled Software. With respect to Mobile Apps that are made available for Customer’s use in connection with an Apple-branded product, in addition to the other terms and conditions set forth in the Agreement, the following terms and conditions apply. Customer acknowledges that the Agreement is between Customer and Aspire only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Mobile App or the content thereof. Customer may not use the Mobile App in any manner that is in violation of or inconsistent with the “Usage Rules” set forth for the Mobile App in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions. Customer’s license to use the Mobile App is limited to a non-transferable license to use the Mobile App on an iOS product that Customer owns or controls, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs. Apple has no obligation to furnish any maintenance and support services with respect to the Mobile App. Apple is not responsible for any product warranties, whether express or implied by law. If the Mobile App fails to conform to any applicable warranty, Customer may notify Apple and Apple will refund any applicable purchase price for the Mobile App, if any, to Customer; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Mobile App, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Aspire’s sole responsibility, to the extent it cannot be disclaimed under applicable law. Apple is not responsible for addressing any claims by Customer or any third party relating to the Mobile App or Customer’s possession and/or use of the Mobile App, including: (a) product liability claims; (b) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Mobile App and/or Customer’s possession and use of the Mobile App infringe a third party’s intellectual property rights. Customer agrees to comply with any applicable third party terms when using the Mobile App. Apple and Apple’s subsidiaries are third party beneficiaries of the Agreement, and upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of the Agreement. Customer hereby represents and warrants that: (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer must comply with applicable third-party terms of agreement when using the Mobile App, e.g., Customer’s wireless data service agreement. If Customer has any questions, complaints, or claims with respect to the Mobile App, Customer should be directed to Aspire as follows: legalinquiry@servicetitan.com, 855-899-0970, 800 N. Brand Blvd., Ste. 100, Glendale, CA 91203.
(c) Google-Sourced Software. The following applies to any Mobile App Customer downloads from the Google Play Store (“Google-Sourced Software”): (i) Customer acknowledges that the Agreement is between Customer and Aspire only, and not with Google LLC. (“Google”); (ii) Customer’s use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where Customer obtained Aspire’s Google-Sourced Software; (iv) Aspire, and not Google, is solely responsible for the Google-Sourced Software; (v) Google has no obligation or liability to Customer with respect to Google-Sourced Software or the Agreement; and (vi) Customer acknowledges and agrees that Google is a third-party beneficiary to the Agreement as it relates to Aspire’s Google-Sourced Software.
36. Interpretation.
In the Agreement, unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) references to "including" or "includes" mean including; (c) references to "days" mean calendar days unless otherwise specified; (d) headings are for convenience only and do not affect interpretation; (e) references to any statute, rule, or regulation include any amendments, modifications, or successor provisions thereto; (f) references to a "party" mean a party to this Agreement and include such party's permitted successors and assigns; (g) the words "herein," "hereof," and "hereunder" refer to the Agreement as a whole; and (h) the Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting party.
37. No Third-Party Beneficiaries.
Except as otherwise expressly provided herein, the Agreement is for the sole benefit of Aspire and Customer and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
38. Waiver.
No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
ATTACHMENT 1
FLEET PRO™ ADDITIONAL TERMS
Customer’s use of Aspire’s Fleet Pro Service is subject to the following additional terms and conditions.
Fleet Pro is powered by Azuga, Inc. (“Azuga”), and your purchase or lease of any hardware (including any GPS-enabled wireless data communication hardware) sourced from Azuga (“Azuga Hardware”), as well as your use of the services provided by Azuga (“Azuga Services”), are subject in all respects to the Azuga terms and conditions located here: https://www.azuga.com/eula/ (the “Azuga Terms”). By subscribing to Fleet Pro, and/or ordering any Azuga Hardware, you acknowledge and agree to the Azuga Terms.
You acknowledge and agree that you will, as a prerequisite to your use of Fleet Pro and/or any Azuga Hardware or Azuga Services, read and express your assent to the Azuga Terms in the manner specified therein. The Azuga Terms are subject to amendment from time to time in Azuga’s sole discretion and without notice to you. You are responsible for regularly reviewing the latest version of the Azuga Terms and any continued use of the Azuga Hardware or Azuga Services following an amendment to the Azuga Terms will constitute your acceptance of such amended Azuga Terms. By subscribing to or otherwise using Fleet Pro, you expressly agree to the transmittal and sharing of your data, including Customer Data, between Azuga and Aspire. Any and all data received by Aspire from Azuga in connection with your use of Fleet Pro constitutes Customer Data.
The Azuga Hardware is manufactured by or on behalf of Azuga, and not Aspire. Azuga Hardware and Azuga Services are not covered by any of the representations or warranties set forth in the Agreement or any agreement you have in place with Aspire, including any service level agreement; such Azuga Hardware is covered only by the Azuga Terms and any warranties made by Azuga therein. The Azuga Hardware and Azuga Services and any claims related thereto are expressly excluded from any and all of Aspire’s indemnification obligations under any agreement in place between you and Aspire.
ASPIRE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE AZUGA HARDWARE OR AZUGA SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; AND/OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY ASPIRE, OR ANY OTHER PERSON ON ASPIRE’S BEHALF. THE AZUGA HARDWARE AND AZUGA SERVICES ARE PROVIDED HEREUNDER ON AN “AS-IS” AND WITH ALL FAULTS BASIS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE OF AZUGA HARDWARE AND AZUGA SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK.
Customer represents and warrants that (a) it has the necessary right and authority to disclose and allow for the recording of all data and information disclosed, provided to, retrieved or observed by Azuga and/or Aspire with respect to the Azuga Services and Fleet Pro; (b) Customer has complied with all applicable laws and regulations regarding such disclosures and recordings; (c) all data and information disclosed or provided to Aspire and/or Azuga by Customer hereunder with respect to the Azuga Services and Fleet Pro will comply with all applicable laws, and will not infringe the copyright, trade secret, privacy, publicity, or other rights of any third party; and (d) Customer shall not disclose, license, publish, disseminate, transfer, lease, or otherwise make available any audiovisual or other data related to the Azuga Services and Fleet Pro unless Customer has all necessary right and authority to take such action. Customer shall obtain all requisite approvals and authorizations from its personnel for any purpose necessary in connection with the creation, display, analysis and distribution of all data collected hereunder with respect to Fleet Pro and the Azuga Services.
To the fullest extent permitted by law, you are responsible for your use of Fleet Pro, and you must ensure that you comply with all applicable laws, rules, and regulations in connection therewith, including all applicable privacy laws in connection with your collection and use of data in connection with Fleet Pro, and your installation and mounting of any Fleet Pro hardware in a vehicle. You agree to defend and indemnify Aspire and its Affiliates from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with your use of Fleet Pro, including any claims alleging that you failed to comply with all applicable laws, rules and regulations, including those relating to privacy.
Warranty claims with respect to the Azuga Hardware must be made per the process set forth in the knowledge base or as otherwise instructed by Aspire.
MARKETING PRO™ ADDITIONAL TERMS
(a) Customer’s use of Aspire’s Marketing Pro service (“Marketing Pro”) is subject to the following additional terms and conditions.
(b) Fees for Marketing Pro. The fees Customer will pay for Aspire Marketing Pro will depend on the number of email contacts in Customer’s Marketing Pro account, the number and types of direct mail pieces you order and the individual features you subscribe for and use. Per piece fees will be charged periodically. Marketing Pro fees are charged monthly in advance, except for usage-based charges, which are charged monthly in arrears. All fees paid hereunder are non-refundable and non-recoupable (including with respect to any returned mail pieces).
(c) Compliance with Law. Customer represents and warrants that Customer’s access to and use of Marketing Pro will comply with all applicable laws, rules and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications. Customer further represents and warrants that Customer has a lawful basis for processing and sending of Content and communications to Customer’s customers, business contacts or followers who consent to receiving marketing or promotional messages from Customer or on Customer’s behalf (“Contacts”), whether through legally appropriate express consents or otherwise. When using the Service, Customer may import data, including personally identifiable information, regarding Customer’s Contacts (“Contact Data”). Customer will not provide Aspire or upload to Marketing Pro, or take any actions with respect to, any Content or Contact Data for which Customer does not have a lawful basis for processing, permissions, or consents in accordance with applicable privacy and data protection laws, nor information that is illegal or inappropriate. Aspire reserves the right to remove illegal or inappropriate content. Customer (and not Aspire) is responsible for ensuring that Customer meets all legal obligations (including notice, consent, and prescribed information and unsubscribe mechanisms) for sending communications to individuals in the jurisdictions where they reside. While Marketing Pro allows Customer to manage and access consents and other Contact Data, Customer acknowledges and agrees that Customer, and not Aspire, has sole responsibility for maintaining all records relating thereto. Customer is solely responsible for determining whether Marketing Pro is suitable for use in light of any laws and regulations that govern Customer’s entity, industry, or relationship with Customer’s own Contacts, including but not limited to consumer protection, anti-spam, privacy, advertising, intellectual property or other laws. Customer may not use Marketing Pro for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, the Canadian Competition Act, Canada’s Anti-Spam Legislation, any Canadian Human Rights Code, or other laws that apply to commerce.
The guidelines below are examples of practices that may violate the Agreement or applicable law when generating or sending commercial electronic messages (“Emails”) through Marketing Pro:
i. Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from Customer by affirmatively opting-in to receive those Emails);
ii. Using purchased or rented Email lists;
iii. Using third party email addresses, domain names, or mail servers without proper permission;
iv. Sending Emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com);
v. Sending Emails that result in an unacceptable number of spam or Unsolicited Commercial Email (UCE) complaints (even if the Emails themselves are not actually spam or UCE);
vi. Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from Customer’s mailing list;
vii. Failing to comply with any request from a recipient to be removed from Customer’s mailing list within 10 days of receipt of the request;
viii. Failing to include in each Email a link to the then-current privacy policy applicable to that Email;
ix. Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;
x. Failing to include in each Email Customer’s valid physical mailing address or a link to that information; and
xi. Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
(d) Third Party Data. Certain functions and features of Marketing Pro make use of data licensed from or owned by third parties (“Third Party Data”). Customer may use this Third Party Data solely in connection with Customer’s use of Marketing Pro and for internal analysis, and Customer shall not use any such Third Party Data for reproduction, sale, publication, or any other use in relation to any product or service to be provided to any third party, or any other commercial exploitation except as expressly consented to in writing by Aspire. Third Party Data remains the property of its owner, and Customer will not acquire any proprietary rights in or to the Third Party Data, and Customer acknowledges that the Third Party Data is a valuable commercial product, the development of which has involved the expenditure of substantial time and money. Customer acknowledges that some Third Party Data is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither the owner/licensee of such Third Party Data nor Aspire makes any warranties, express or implied, including those of merchantability and fitness for a particular purpose. Further, neither owner/licensee of such Third Party Data nor Aspire are responsible for errors, omissions, miscalculations, or misrepresentations of value. Any use of or reliance on Third Party Data by Customer is at Customer’s own risk.
(e) Termination. Upon termination of Customer’s Marketing Pro subscription in accordance with the Terms herein, Aspire will allow Customer to access the Content for a limited period of thirty (30) days for the purpose of removing all Aspire-provided content from the Content. Subject to subsection 8.5.5 above and Aspire’s agreement that all Aspire-provided content (or content derived from Aspire-provided content) has been removed from the Content, Aspire will then permit Customer to export the Content from Marketing Pro.
CREW CONTROL ADDITIONAL TERMS
The Crew Control Service is standalone software that may be subscribed to hereunder and which is offered via http://www.crewcontrol.us (“CCS”). Additional details regarding CCS are available in the documentation published therein. Customer may elect to subscribe to Payments as part of CCS and in such instance the Payments Additional Terms set forth herein will apply. In the event of any conflict between these Crew Control Additional Terms and the terms set forth in the main body of the Terms, these Crew Control Additional Terms will govern and control.
Subscriptions to CCS are charged in advance to the payment method on file, on a monthly or annual basis, depending upon the type of subscription you select. If you upgrade your subscription (e.g., by adding additional crews or upgrading your plan) we will charge your payment method on file the prorated difference in fees for the remainder of the current billing period as of the date the upgrade is submitted by you within CCS. If you downgrade your subscription (e.g., by removing crews or downgrading your plan), such downgrade is immediate and a prorated nonrefundable account credit reflecting any pre-paid but unused subscription fees will be applied toward future subscription fees incurred under your CCS account. Any and all such credits expire upon the expiration or termination of your CCS subscription.
Your CCS subscription will automatically renew at the end of the then-current billing period at the same subscription level and the same billing period duration unless you cancel your subscription within your CCS account or contact CCS Support not less than 10 business days in advance of your renewal date and request cancellation, subject to any price increases we may notify to you in advance (email acceptable). If you fail to pay any CCS fees when due, and do not cure within seven (7) days, we may terminate your CCS account without further notice; further, in connection with any failure to pay your CCS fees when due, we may suspend your access to the CCS Service without notice. We reserve the right to immediately terminate your subscription if any activity which we deem, in our sole discretion, to be malicious or fraudulent in nature occurs within your CCS account (e.g., credit card fraud or SMS phishing attempts), or in connection with any action which we deem to be a violation of our Community Code of Conduct (each an “Immediate CCS Termination”).
Customer Data and any other data within CCS is not exportable in connection with any termination or expiration of your account, aside from any features or functionality within CCS that may enable you to export certain Customer Data or other data directly from your CCS account. You will have limited access to CCS for a period of sixty (60) days post termination or expiration of your CCS account, except in the case of an Immediate CCS Termination, for the sole purpose of viewing and/or exporting your Customer Data. We have no obligation to retain your Customer Data or any other data of yours for greater than sixty (60) days post-termination or expiration of your CCS subscription and may thereafter delete it without further obligation.
Sections 6.2 (Invoices), 6.3 (Aspire’s Right to Audit and Verify Customer Revenue), and 17 (Exclusivity) above do not apply to CCS.
PAYMENTS ADDITIONAL TERMS
(a) Customer’s use of Aspire Payments™ (“Payments”) is subject to the following additional terms and conditions. Payments is also provided separately as part of the Crew Control Service.
(b) PCI DSS Compliance. In the course of using Payments, Customer will have access to and may collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information. Customer agrees and acknowledges that Customer shall at all times remain in compliance with Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Customer’s sole cost and expense. Aspire agrees and acknowledges that Aspire is responsible as well for the security of cardholder data that Aspire possesses or otherwise stores, processes, or transmits on behalf of Customer and to the extent that Aspire could impact the security of Customer’s cardholder data environment.
(c) Indemnification. To the fullest extent permitted by law, Customer is responsible for Customer’s use of Payments, and Customer will defend and indemnify Aspire from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with Customer’s use of Payments, including any expenses for chargebacks, fines or fees for which Aspire becomes liable for or otherwise incurs.
(d) Third Party Processing; Underwriting Requirements. Payments is dependent upon third party payment processors and as a prerequisite to Customer’s use of Payments, Customer must enter into agreements directly with such third party payment processors and successfully complete the applicable underwriting processes. Customer’s use of Payments is subject to the approval (and ongoing underwriting) of such third party payment processors in their sole discretion and subject to the terms, conditions, policies, limitations, and other requirements imposed by them from time to time.
PROPERTY INTEL ADDITIONAL TERMS
SERVICES.
(a) Property Intel interactive online services (“PI Websites”) are operated by Aspire and are a portion of the Service that may be subscribed to hereunder. Additional details regarding the PI Website Services (defined below) are available in the documentation published on the PI Websites.
(b) The PI Websites and included content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features (collectively, the “PI Websites Content”) and all intellectual property rights to the same constitute Aspire Property. Additionally, all trademarks, service marks, trade names and trade dress that may appear on the Website are owned by us, our licensors, or both. Except for any limited use rights expressly granted to you in the Agreement, you shall not acquire any right, title or interest in the Website or any PI Websites Content. Any rights not expressly granted in the Agreement are expressly reserved.
(c) Our PI Websites include functionality allowing Authorized Users to search for properties, view aerial and other imagery of certain properties, review data relating to properties, graphically edit property images, create property boundaries, perform measurements, as well as other features and functionality (“PI Website Services”). Our PI Website Services in no way comprise or serve as a substitute for actual property or real estate surveys. For instance, for a variety of reasons (e.g., updates to the property, incorrect data, dated imagery, hidden areas, etc.), the boundaries that our PI Website Services may visually depict for a particular property may, in fact, be different from the legal boundaries associated with that property. Results or other information provided through our PI Website Services are estimates only and should be treated accordingly and independently verified.
(d) Aspire expressly reserves the right to limit or change the amount of data or image tiles that may be consumed by you per search, without notice and for any reason, in accordance with the terms of your pricing plan.
BILLING.
(a) If you subscribe to a PI Website Service that requires monthly billing, you agree and authorize Aspire to either automatically bill your credit card every 30 days from the date that you established the PI Website Services or charge your account via ACH (in the case that you are an existing Aspire customer). If you elect to be automatically billed each month, you will be required to submit your credit card information to our secure third-party processing company, Stripe Online Payment Processing for Internet Business: https://stripe.com/. Your credit card information is not being submitted to Aspire and Aspire is not responsible or liable for your credit card information. Aspire reserves the right to change this payment method at any time upon notice to you (email acceptable) and you agree to timely provide us with updated payment information and otherwise comply with our instructions in connection therewith. Any free months of PI Website Services offered by Aspire may be applied at any time during the applicable Term and any such free months and discounts are subject to and conditioned upon your ongoing compliance with the terms of the Agreement.
(b) Each PI Website Service subscription entitles the holder to the number of address searches specified in the applicable Order. Any additional searches will be subject to additional payment under one of our subscription options.
(c) All address search, map, and property reports credits purchased shall expire one year from date of purchase. Promotional or free trial accounts expire 30 days from activation, or sooner at Aspire’s option, and are provided as an Early Access Service. Aspire may elect to extend the term of a promotional or free trial account in its sole discretion.
USER CONTENT.
(a) When using our PI Website Services, you may do any of the following: (1) post, upload, submit, transmit through or otherwise make available to us (collectively “submit”) data, text, information or other content relating to certain properties; (2) edit or modify the images and other information we supply in return using the functionality and tools available through our PI Websites; and (3) submit content (e.g., messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials) for posting on our PI Websites. Any content you submit through or to our Websites is your “PI User Content.” Subject to the rights and license you grant herein, you retain all right, title and interest in your PI User Content. We do not guarantee any confidentiality with respect to PI User Content even if it is not published on the PI Website. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your PI User Content, and we do not accept any responsibility for the same.
(b) You shall not submit any PI User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from PI User Content that you submit.
(c) By submitting PI User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including translations), publicly display, publicly perform, transmit, and publish the PI User Content (in whole or in part) as we, in our sole discretion, deem appropriate including (1) in connection with our business; and (2) in connection with the businesses of our successors, parents, subsidiaries, and their related companies. Such uses may include the resale of information gathered from edits and modifications to search results. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such PI User Content. Furthermore, you also grant other users permission to access your PI User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your PI User Content as permitted by the functionality of the PI Website and the Agreement. All rights in this paragraph are granted without any compensation of any sort to you.
(d) If your PI User Content is intended for posting on our PI Websites, you also grant us the right, but we are under no obligation to use your biographical information including your name and geographical location in connection with broadcast, print, online, or other use or publication of your PI User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the PI User Content.
(e) We reserve the right to display advertisements in connection with your PI User Content and to use your PI User Content for advertising, promotional or any other purpose we deem appropriate. You acknowledge and agree that your PI User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
(f) We have the right, but not the obligation, to monitor PI User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any PI User Content.
WEBSITE CONTENT & THIRD PARTY LINKS.
(a) We provide the PI Websites including PI Websites Content for business and promotional purposes only. You may not rely on any information and opinions expressed on any of our PI Websites for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of PI Websites Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any PI Websites Content.
(b) The PI Websites may contain links to other websites maintained by third parties (including Google's map services, which, to the extent you utilize you agree to be bound by Google's Terms of Use found at https://cloud.google.com/maps-platform/terms/). We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
MOBILE FACIAL RECOGNITION ADDITIONAL TERMS
The terms and conditions in this Mobile Facial Recognition section may be referred to as the “Biometric Terms” herein.
Customer’s use of the Service will include the collection, use, storage, or transmittal of individuals’ biometric data, including biometric identifiers and/or biometric information (“Biometric Data”), when Customer is subscribed to and utilizing certain Service features which relate to the collection, use, possession, storage, or transmittal of Biometric Data (the “Biometric Features”) within the Service. The Biometric Features make use of an integration between the Service and certain third-party software intended to derive Biometric Data from photographs of individuals submitted by Customer to the Service, which third-party software thereafter analyzes photographs submitted to the Service by Customer’s users of the Service (including any mobile application) upon login to validate the identity of each such employee in connection with each such employee’s utilization of the Service (the “Biometric Software Provider”).
Customer may have individual and separate obligations to comply with data privacy and protection laws in particular jurisdictions that may be implicated by Customer’s use of the Service and Biometric Features, or Customer’s collection, use, storage, or transmittal of an individual’s Biometric Data, including where Aspire, and/or the Biometric Software Provider, performs these activities on Customer’s behalf, which may include a requirement that Customer obtain prior written consent from each individual as a prerequisite to any collection, use, storage or transmittal of each such individual’s Biometric Data.
Collection, use, storage, and transmittal of Biometric Data, e.g., a scan of facial geometry, a scan of a photograph involving facial geometry, imagery of the face, or photo of the face, may be subject to various biometric privacy laws, including the State of Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et. seq., the Texas Capture or Use of Biometric Identifier Act (“CUBI”), Tex. Bus. & Com. Code Ann. § 503.001, the State of Washington’s law regarding biometric identifiers, RCW 19.375.010, et. seq., and other federal, state and local privacy laws impacting biometrics and biometric data, including the California Consumer Privacy Act (“CCPA”), Cal. Civ. Code §§ 1798.100, et. seq., each as amended, supplemented, or replaced from time to time. For purposes of the Agreement, these types of laws will be referred to as “Biometric Information Privacy Laws.”
Customer acknowledges that:
it is solely responsible for determining whether it is subject to any Biometric Information Privacy Laws, including with respect to Customer’s use of the Service;
it is solely responsible for complying with any Biometric Information Privacy Laws to which it is subject through Customer’s use of the Service or Customer’s collection, use, possession, storage, or transmittal of any individual’s Biometric Data in connection with using the Service; and
nothing in the Agreement, any terms incorporated by reference herein, any click through or other terms and conditions, or within the functionality of the Service shall be construed as legal advice from, by, or on behalf of Aspire or its representatives. Customer further acknowledges that it may and should consult legal counsel of its choosing to determine whether and to the extent Customer is subject to Biometric Information Privacy Laws and any obligations Customer may have to comply with the requirements of those laws.
Customer represents and warrants that it will:
comply with all applicable Biometric Information Privacy Laws prior to using the Biometric Features of the Service, and that it will comply with all applicable requirements of the Biometric Information Privacy Laws prior to and at all times that it collects, captures, stores, possesses, uses, or transmits any individual’s Biometric Data, including any required notification of the transfer of Biometric Data to a third party.
obtain all necessary consents from the affected individuals, as applicable under the Biometric Information Privacy Laws, prior to collecting, capturing, storing, possessing, using, or transmitting any individual’s Biometric Data via the Service, including any consents required in connection with any change in how Biometric Data is collected, stored, or used, in the future;
provide all necessary notices to the affected individuals, as applicable under the Biometric Information Privacy Laws, before collecting, capturing, storing, possessing, using, or transmitting any individual’s Biometric Data via the Service; and
consult with its own legal counsel prior to making use of any functionality within the Service provided by Aspire to provide notices and/or obtain consents required by Biometric Information Privacy Laws, and Customer is solely responsible for its use thereof in full compliance with Biometric Information Privacy Laws.
Aspire will direct the Biometric Software Provider to retain and delete Biometric Data in accordance with Aspire’s then-current Biometric Data retention policy. To the extent that an individual has given consent via the Service (including any Aspire mobile application) for the collection of Biometric Data and use with Biometric Features, if such individual submits a Biometric Data deletion request to Aspire, or withdraws consent via the Service, Aspire will make reasonable efforts to notify Customer, and should Customer fail to timely respond with instructions, Aspire will direct the Biometric Software Provider to delete the Biometric Data at issue (“Biometric Data Deletion”). Further, Customer agrees to immediately notify Aspire of any request by an individual, received by Customer, to withdraw consent for the collection of Biometric Data and use with Biometric Features, in writing via channels and methods designated by Aspire from time to time, and Aspire will thereafter proceed with Biometric Data Deletion. Customer will ensure that Customer immediately deactivates the user account within the Service of any Customer user who ceases to be employed or contracted with Customer.
The parties shall not sell or profit from the disclosure or sharing of Biometric Data (including any derivatives thereof). Customer is solely responsible for determining whether Customer’s use of the Biometric Features complies with all applicable laws, rules, and regulations. Aspire shall secure Biometric Data in the same manner as any other confidential or sensitive information that it stores. All provisions of these Biometric Terms which by their nature are intended to survive termination or expiration of the Agreement shall so survive.
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