This Master Services Agreement (this “Agreement”) is a binding legal agreement between you (“Service Provider” or “You”) and Aspire, LLC (“Aspire” or “We”), regarding your provision of services to Aspire and certain Aspire customers. Aspire desires to retain Service Provider to provide certain professional and consulting services to Aspire’s customers upon the terms and conditions set forth herein and in the applicable Statement of Work (defined below), and Service Provider is willing to perform such services. Aspire and Service Provider may hereinafter be referred to together as the “Parties” and each, a “Party”). 

THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT EXECUTE ANY STATEMENT OF WORK OR OTHER DOCUMENT THAT IS GOVERNED BY THIS AGREEMENT OR WHICH REFERENCES THIS AGREEMENT.

BY AGREEING TO THIS AGREEMENT YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THE TERMS HEREIN. YOU AFFIRM THAT IF YOU ENTER INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THIS AGREEMENT. 

YOU SHALL NOT ENTER INTO THIS AGREEMENT IF YOU (I) DO NOT AGREE TO THE TERMS HEREIN, OR (II) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) THE LEGAL AGE TO FORM A BINDING CONTRACT. 

THIS AGREEMENT REQUIRES ARBITRATION TO RESOLVE DISPUTES, RATHER THAN A JURY TRIAL. 

In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

1. Definitions “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is controlled by, or is under common control with, such Person. 

“Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information of a party may include information owned by or pertaining to a third party that is in the possession of such party and disclosed pursuant to this Agreement. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

“Control”, including the terms “controlled by” and “under common control with” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, title, by contract, or otherwise.

“Customer” shall mean Aspire and the designated Aspire customer set forth on the applicable Statement of Work to which Service Provider has agreed to provide Services.

“Customer Materials” any documents, data, know-how, methodologies, software and other materials provided to Service Provider by Customer, including computer programs, reports and specifications.

“Deliverables” means all documents, work product and other materials that are delivered to Customer hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work. 

“Disability” means any natural Person’s incapacity due to physical or mental illness that: (a) shall have prevented such Person from performing his or her duties on a full-time basis for more than 45 or more consecutive days or an aggregate of 90 days in any 365-day period.

“Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. 

“Key Personnel” means Service Provider Personnel (if any) identified as such in a Statement of Work.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Project” means a project as described in a Statement of Work.

“Project Milestone” means an event or task described in a Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.

“Service Provider Personnel” means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.

“Services” mean any professional or other services to be provided by Service Provider under this Agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.

“Statement of Work” means each Statement of Work entered into by the Parties.

2. Services

2.1 Service Provider shall provide the Services to Customer as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement.

2.2 Each Statement of Work shall include the following information, if applicable:

(a) a detailed description of the Services to be performed and any Deliverables to be delivered pursuant to the Statement of Work; (b) the date upon which the Services will commence and the term of such Statement of Work; (c) the names of Key Personnel, if any; (d) the fees to be paid to Service Provider under the Statement of Work; (e) Project Milestones and payment schedules; (f) any criteria for completion of the Project; (g) procedures for the testing and acceptance of the Services and Deliverables by Customer (if any); and (h) any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Statement of Work.

2.3 A Statement of Work may be in any form agreed between the Parties, provided it is agreed to be a Statement of Work for the purposes of this Agreement.

3. Service Provider’s Obligations

3.1 Service Provider shall:

(a) appoint Service Provider Personnel, who shall be suitably skilled, experienced and qualified to perform the Services; (b) maintain the same the primary Service Provider contact under this Agreement who has the ability to bind Service Provider hereunder and other Key Personnel throughout the Term of this Agreement except for changes in such personnel due to:

1. Customer’s request pursuant to Section 3.01(c); or

2. the resignation or termination of such personnel or other circumstances outside of Service Provider’s reasonable control

(c) upon the written request of Customer, promptly replace any Service Provider Personnel in the performance of the Services; (d) before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents, and comply with all relevant Laws applicable to the provision of the Services, and ensure that all Service Provider Personnel have the legal right to work in the jurisdiction in which the Services shall be performed; (e) comply with, and ensure that all Service Provider Personnel comply with, all rules, regulations and policies of Customer that are communicated to Service Provider in writing, including security procedures concerning systems and data and remote access thereto; (f) maintain complete and accurate records relating to the provision of the Services under this Agreement, including but not limited to, records of the time spent, and materials used by Service Provider in providing the Services in such form as Customer shall approve. During the Term and for a period of two (2) years thereafter, upon Customer’s written request, Service Provider shall allow Customer or Customer’s representative to inspect and make copies of such records; (g) obtain Customer’s written approval, which approval may be given or withheld in Customer’s sole discretion, prior to entering into agreements with or otherwise engaging any Person, including all subcontractors and Affiliates of Service Provider, other than Service Provider’s employees to provide any Services and Deliverables to Customer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Customer’s approval shall not relieve Service Provider of its obligations under the Agreement, and Service Provider shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Service Provider subcontractor or supplier; and (h) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement, and, upon Customer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Customer.

3.2 Service Provider is responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other taxes, statutory or other pensions, unemployment insurance, workers’ compensation insurance payments, disability and any and all similar benefits and any and all payments of any type or kind whatsoever.

3.3 Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations, including all timetables, Project Milestones and other requirements in this Agreement and each Statement of Work, is strictly required. 

4. Customer’s Obligations

4.1 Customer shall:

(a) cooperate with Service Provider in all matters relating to the Services and appoint and, in its sole discretion, replace a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the “Customer Contract Manager”);  (b) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and (c) provide any such Customer Materials as Service Provider may reasonably request, and Customer considers reasonably necessary, in order to carry out the Services in a timely manner and to ensure that the work performed pursuant to the Services is complete and accurate in all material respects.

5. Change Orders

5.1 If Customer wishes to change the scope or performance of the Services, it shall submit details of the requested change to Service Provider in writing. Service Provider shall, within three (3) business days after receipt of Customer’s written request, provide a written estimate to Customer of:

(a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change under the applicable Statement of Work; (c) the likely effect of the change on the Services under the applicable Statement of Work; and (d) any other impact the change might have on the performance of this Agreement or the applicable Statement of Work.

5.2 Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such change (each a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 18.10.

6. Term

This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work, unless sooner terminated pursuant to Section 15.

7. Fees and Expenses; Payment Terms

7.1 In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Aspire shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 7 shall constitute payment in full for the performance of the Services, and, Customer shall not be responsible for paying any other fees, costs or expenses. Aspire will only reimburse Service Provider for pre-approved, actual and reasonable out-of-pocket expenses reasonably incurred by Service Provider in connection with the Services performed under any Statement of Work.

7.2 Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work, with each installment being conditional on Service Provider achieving the corresponding Project Milestone, as applicable. On achieving a Project Milestone or at the end of a period specified in the applicable Statement of Work in respect of which an installment is due, as applicable, Service Provider shall issue invoices to Aspire for the fees that are then payable only following Customer’s acceptance (in writing) of the associated Services and Deliverables. 

7.3 Where Services are provided on a time and materials basis, the fees payable for the Services shall be calculated in accordance with Service Provider's fee rates set forth in the applicable Statement of Work. Service Provider shall issue invoices to Aspire monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section, and only following Customer’s acceptance (in writing) of the associated Services and Deliverables, together with a detailed breakdown of any expenses for such month incurred as permitted by the applicable Statement of Work and with Aspire’s prior written approval.

7.4 Service Provider shall issue invoices to Aspire only in accordance with the terms of this Section, and Aspire shall pay all properly invoiced amounts due to Service Provider within thirty (30) days after Aspire’s receipt of such invoice or as otherwise set forth in the applicable Statement of Work, except for any amounts disputed by Aspire in good faith. All payments hereunder shall be in US dollars and made by ACH Payment or check.

7.5 Aspire shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Aspire hereunder; provided, that, in no event shall Aspire pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel or real or personal property or other assets.

7.6 Without prejudice to any other right or remedy it may have, Aspire reserves the right to set off at any time any amount owing to it by Service Provider against any amount payable by Aspire to Service Provider.

8. Data Privacy 

The Parties agree to execute a Data Processing Addendum on or about the date hereof in a form attached hereto as Exhibit A and incorporated herein by reference. 

9. Employer Responsibilities and Personnel Reassignment

9.1 Service Provider shall remain the employer of all Service Provider Personnel and shall be solely responsible for the compensation of said employees, and as such, shall comply with and perform all responsibilities under all applicable legal requirements with respect thereto. Service Provider will (i) maintain all necessary personnel and payroll records for Service Provider’s employees, (ii) calculate their wages and withhold/pay applicable taxes and other government mandated charges, if any; (iii) pay net wages and fringe benefits, if any, directly to Service Provider 's employees; (iv) provide for liability insurance and (v) provide insurance coverage in amounts as required by law. Service Provider shall not make any claim that any of Service Provider’s employees is an employee of Customer, and Service Provider shall indemnify, defend, and hold Customer harmless from and against all loss, claim, damage, penalty, cost, expense, and attorneys’ fees related to any claims made against Customer by any of Service Provider‘s employees arising from Service Provider’s failure to perform in compliance with all laws, ordinances, rules and regulations applicable to its business as an employer.

9.2 To the extent permitted by Applicable Laws, (i) Service Provider shall not remove or replace any Service Provider Personnel performing the Services without Customer’s prior written consent, except in the event such individual is no longer employed or otherwise under contract with Service Provider; and (ii) Customer may request at any time that certain of Service Provider’s employees cease performing the Services, and Service Provider shall remove and replace such persons upon Customer’s request.

10. Intellectual Property Rights; Ownership

10.1 As between Aspire, Service Provider and the designated Aspire customer set forth on the applicable Statement of Work to which Service Provider has agreed to provide Services (“Client”), the Client is, and shall be, the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider agrees, and will cause its Service Provider Personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Service Provider agrees to irrevocably assign, and shall cause Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider shall cause Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables. 

10.2 Upon the request of Aspire or Client, Service Provider shall, and shall cause Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.

10.3 Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer.

10.4 Customer agrees and acknowledges that Service Provider may be limited in its ability to assign interest in Deliverables as a result of and to the extent of Service Provider’s use of open source or publicly licensed software and components (“Open Source Software”) in the creation of the Deliverables or the incorporation of Open Source Software into the Deliverables.  Acknowledging that Service Provider’s assignment of Deliverables shall be as complete as practicable and provided that Client’s use of Deliverables is not impaired as a result, nothing in this Section 10 shall require or be deemed to require the assignment of any Open Source Software to Client.

11. Confidential Information

11.1 Service Provider agrees: 

(a) not to disclose or otherwise make available Confidential Information of Customer to any third party without the prior written consent of Customer; provided, however, that Service Provider may disclose the Confidential Information of Customer to its Affiliates, and each of their officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; (b) to use the Confidential Information of Customer only for the purposes of performing its obligations under the Agreement; and (c) to promptly notify Customer in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Customer.

11.2 If Service Provider becomes legally compelled to disclose any Confidential Information, Service Provider shall provide:

(a) prompt written notice of such requirement so that Customer may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at Customer’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. 

If, after providing such notice and assistance as required herein, Service Provider remains required by Law to disclose any Confidential Information, Service Provider shall disclose no more than that portion of the Confidential Information which, on the advice of Service Provider’s legal counsel, Service Provider is legally required to disclose.

12. Representations and Warranties

12.1 Each party represents and warrants to the other party that:

(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;  (c) the execution of a Statement of Work pursuant to this Agreement by its representative has been duly authorized by all necessary corporate action of the Party; and (d) when executed and delivered by such party, each Statement of Work will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

12.2 Service Provider represents and warrants to Customer that:

(a) it is validly formed and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable and is duly qualified to do business in every jurisdiction where such qualification is required; (b) it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; (c) it is in compliance with, and shall perform the Services in compliance with, all applicable Laws; (d) Customer will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind, subject to the conditions and limitations described in this Agreement; (e) (i) none of the Services, Deliverables and Customer’s use thereof infringe or will infringe any Intellectual Property Right of any third party arising under the Law of the United States and (ii) as of the date hereof, there are no pending or, to Service Provider’s knowledge, threatened claims, litigation or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property Rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (x) any Customer Materials or any instruction, information, designs, specifications or other materials provided by Customer to Service Provider, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider; (f) the Services and Deliverables will be in conformity in all respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work. In the event of Service Provider’s breach of the foregoing warranty, Service Provider’s sole and exclusive obligation and liability and Aspire’s sole and exclusive remedy shall be as follows:

1. Service Provider shall use reasonable efforts to cure such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Aspire’s written notice of such breach; Aspire may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 18.04; and

2. In the event the Agreement is terminated in accordance with this Section 12.02(f)(ii), Service Provider shall within thirty (30) days after the effective date of termination, refund to Aspire any fees paid by the Aspire as of the date of termination for such Service or Deliverable.

(g) the Deliverables shall not contain (i) any virus, Trojan horse worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to or disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a Person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program; (h) it shall maintain (and require its subcontractors to maintain) reasonable and appropriate technical and organizational measures for the protection of the security, confidentiality, and integrity of data provided by Customer;  (i) it will provide Customer with prompt written notice of any unauthorized access to or disclosure of personal data or personal information received from Customer to security@servicetitan.com; and (j) it shall establish and maintain an information security program which includes standard technical, administrative, organizational and physical security polices and safeguards which comply with generally accepted information security protocols in Aspire’s industry that are designed to (i) ensure the security and confidentiality of Customer’s Confidential Information, (ii) protect against any threats or hazards to the security or integrity of Customer’s Confidential Information, including destruction, alteration, accidental loss, misuse or damage, (iii) protect against unauthorized access to or acquisition or use of the Customer’s Confidential Information, (iv) ensure the proper disposal of Customer’s Confidential Information, and (v) provide industry standard security for Service Provider’s premises and systems, and to the extent available, provide to Aspire upon request its most recent SOC 2 type II report. Service Provider further warrants to Customer that it shall implement processes and procedures consistent with generally accepted practices in Aspire’s industry that are designed to ensure that the Services and any associated Deliverables, at the time of delivery to Customer, are free of any known virus, malicious code or Trojan horses designed to disable or permit the Deliverables to be remotely disabled or render any function of the Deliverables unusable.

12.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

13. Imdemnification

13.1 Service Provider shall defend, indemnify and hold harmless Customer and Customer’s Affiliates and their officers, directors, employees, agents, successors and permitted assigns (each, a “Customer Indemnitee”) from and against all Losses arising out of or resulting from any third-party claim, suit, action or proceeding (each, an “Action”) arising out of or resulting from:

(a) Service Provider’s gross negligence, fraud or willful misconduct; and (b) Service Provider’s material breach of any representation, warranty or obligation of Service Provider set forth in this Agreement or the Intellectual Property Rights of any third party.

13.2 Service Provider shall defend, indemnify and hold harmless the Customer Indemnitees from and against all Losses based on a claim that any of the Services or Deliverables or Customer’s receipt or use thereof infringes any Intellectual Property Right of a third party.

13.3 Aspire shall promptly notify Service Provider in writing of any Action and cooperate with Service Provider at Service Provider’s sole cost and expense. Aspire shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at Service Provider’s sole cost and expense. Aspire shall not settle any Action in a manner that adversely affects the rights of Service Provider without Service Provider’s prior written consent, which shall not be unreasonably withheld or delayed. Aspire’s failure to perform any obligations under this Section 13.03 shall not relieve Service Provider of its obligations under this Section 13.03 except to the extent that Service Provider can demonstrate that it has been materially prejudiced as a result of such failure. Service Provider may participate in and observe the proceedings at its own cost and expense.

14. Limitation of Liability

14.1 EXCEPT AS OTHERWISE PROVIDED IN Section 14.03, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2 EXCEPT AS OTHERWISE PROVIDED IN Section 14.03, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK AND ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000).

14.3 The exclusions and limitations in Section 14.01 and Section 14.02 shall not apply to:

(a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 10 (Intellectual Property Rights; Ownership);  (b) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 11 (Confidentiality); (c) a party’s indemnification obligations under Section 13 (Indemnification); (d) damages or other liabilities arising out of or relating to a party’s gross negligence, willful misconduct or intentional acts; (e) death or bodily injury or damage to real or tangible personal property resulting from a party’s negligent acts or omissions; (f) damages or liabilities to the extent covered by a party’s insurance; and (g) a party’s obligation to pay attorneys’ fees and court costs in accordance with Section 18.05.

15. Termination; Effect of Termination

15.1 Aspire, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, by providing at least thirty (30) days’ prior written notice to Service Provider. 

15.2 Either party may terminate this Agreement or any Statement of Work, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: 

(a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach; or (b) (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.

15.3 Upon expiration or termination of this Agreement for any reason:

(a) Service Provider shall (i) promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Aspire has paid, all work-in-progress and all Customer Materials, (ii) provide reasonable cooperation and assistance to Customer in transitioning the Services to an alternate Service Provider, and (iii) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided; (b) Each party shall, upon prior written request of the other party: (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, including data and any confidential information of Aspire customers, (ii) permanently erase all of the other party’s Confidential Information (including confidential information of Aspire customers) from its computer systems (excluding routine backups as to which Confidential Information shall remain subject to the terms of this Agreement for as long as it is so retained), and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Customer may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables; and (c) In no event shall Customer be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.

15.4 The rights and obligations of the Parties set forth in this Section 15.04 and Section 10, Section 11, Section 12, Section 14, Section 15.03, Section 16, and Section 18, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

16. Non-Solicitation of Customers

Service Provider acknowledges and agrees that Service Provider will have access to certain confidential and/or proprietary information relating to Aspire’s clients, including customer lists, names, phone numbers, addresses, email addresses, pricing information, and other information specific to Aspire’s clients (collectively, “Client Information”). Service Provider acknowledges and agrees that Client Information is Confidential Information of Aspire and constitutes a trade secret of Aspire and agrees and covenants that Service Provider will not use Client Information to directly or indirectly solicit Aspire’s clients or to interrupt, disturb, or interfere with the relationships of Aspire with its clients. 

17. Insurance

17.1 Service Provider shall, at its sole cost and expense, maintain all usual and customary insurance against losses and damages caused by Service Provider or any of its employees, agents, contractors or subcontractors of any tier, and at minimum, the following:  

(a) Workers’ compensation and similar insurance as prescribed by the law of the jurisdictions in which Service Provider does business;  (b) Employer’s Liability insurance with a U.S. $1,000,000 per occurrence and U.S. $1,000,000 aggregate limit;  (c) Errors and Omissions/Professional Liability with limits no less than $2,000,000 per occurrence and $2,000,000 in the aggregate;  (d) Cybersecurity Liability insurance with a minimum limit of liability of $2,000,000 per occurrence and $2,000,000 in the aggregate, which insurance coverage shall include business interruption, data asset protection, cyber extortion and privacy breach expense; and  (e) Comprehensive General Liability insurance, including bodily injury, contractual liability and property damage, with a U.S. $2,000,000 per occurrence and U.S. $2,000,000 aggregate limit. 

17.2 All insurance policies required pursuant to this Agreement shall designate Aspire and the Aspire customer listed on the applicable Statement of Work as an additional insured evidenced by a certificate of insurance that shall be provided to Aspire upon request. All such insurance must be primary and require the issuer to respond and pay prior to any other available coverage. 

17.3 All insurance policies (i) will be issued by insurance companies with a Best’s Rating of no less than A-VII and (ii) waive any right of subrogation of the insurers against Aspire or any of its affiliates. 

17.4 Any waiver of the insurance requirements set forth in this Section 17 shall be in writing and by an authorized representative of Aspire. 

18. Miscellaneous 

18.1 Nothing set forth in this Agreement or any Statement of Work shall be interpreted to prevent Aspire or any of its Affiliates from developing or offering services similar or identical to the Services in the future, which may compete with Service Provider. 

18.2 Each party shall, upon the reasonable request of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

18.3 The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating 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.

18.4 Service Provider shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use Customer’s trademarks, service marks, trade names, logos, symbols or brand names, in each case, without Aspire’s prior written. 

18.5 Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the mailing addresses or email addresses set forth on the applicable Statement of Work (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, overnight express courier (with all fees prepaid), or e-mail (with confirmation of transmission) (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the Party giving the Notice has complied with the requirements of this Section.   

18.6 For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits and Statements of Work refer to the Sections of, and Schedules, Exhibits and Statements of Work attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

18.7 This Agreement, together with all Schedules, Exhibits and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits and Schedules; (b) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to this Agreement; provided, however, that a mutually executed Statement of Work shall take precedence over this Agreement to the extent it explicitly references modifying specific terms of this Agreement. 

18.8 Service Provider shall not assign, transfer or delegate any or all of its rights or obligations under this Agreement, without Aspire’s prior written consent. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

18.9 This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. Notwithstanding the foregoing, Aspire Affiliates are authorized to use the Services on par with Aspire and benefit from this Agreement. 

18.10 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

18.11 This Agreement may be amended, modified or supplemented by Aspire at any time in its sole discretion. We will provide you not less than thirty (30) days’ advance notice via email of any material changes, unless such material changes result from changes in laws or regulations. It is your responsibility to visit this page and review the current version of this Agreement. The updated version of this Agreement supersedes all prior versions. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18.12 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

18.13 This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the United States District Court for the Southern District of California or the courts of the State of California sitting in the city and county of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. 

18.14 EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

18.15 Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be resolved by confidential arbitration in Los Angeles County, California, administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Both parties will equally share the fees of the arbitrator.  The arbitrator may award attorneys’ fees and costs as part of the award to the prevailing party.  The arbitrator shall not have the authority to impose an award of punitive, exemplary or multiplied damages.  Notwithstanding the foregoing, either party may, without recourse to arbitration, assert against the other party a third-party claim or cross-claim in any action brought by a third party, to which the subject matter of this Agreement may be relevant.  Notwithstanding the requirements of this Section, if the other party has breached its obligations with respect to confidentiality, either party may request injunctive and equitable relief, without posting bond or other security, from the state or federal courts in Los Angeles, California, and in such event the Parties consent to the exclusive jurisdiction and venue of such courts.

18.16 Each party acknowledges that a breach by a party of Section 10 (Intellectual Property Rights; Ownership) or Section 11 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

18.17 In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

18.18 Neither Party will be liable for, nor be considered in breach of this Agreement, on account of any delay or failure to perform as required hereunder (excluding payment of money) as a result of fire, flood, acts of God or public enemy, Internet or telecommunication network failures, earthquakes, governmental or court order, national emergency, pandemic, strikes, labor disputes, or any other cause which is beyond the reasonable control of the Party which renders impossible or impractical the performance of contractual obligations, either totally or in part (a “Force Majeure Event”), excluding in all cases claims of financial hardship; provided that the nonperforming Party gives the other Party written notice within three business days of the claim of a Force Majeure Event.

Service Provider 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, Service Provider 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 Customer 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. This export control clause shall survive termination or expiration of this Agreement.

Exhibit A

Data Processing Addendum for Aspire Vendors

This Data Processing Addendum (“Addendum”) is entered into by and between Aspire, LLC, on behalf of itself and its affiliates (“Customer”), and the vendor identified below, on behalf of itself and its affiliates (“Vendor”) (each a “Party”; collectively the “Parties”) in connection with any agreements, order forms and statements of work between the Parties (collectively, the “Agreement”), and in furtherance of obligations under applicable privacy laws, including the California Consumer Privacy Act of 2018 and the California Privacy Rights Act of 2020 (California Civil Code §§ 1798.100 to 1798.199), the Colorado Privacy Act (Colo. Rev. Stat. §§ 6-1-1301 to 6-1-1313), and the Virginia Consumer Data Protection Act (SB 1392), and their implementing regulations, each as amended or superseded from time to time (collectively, the “Privacy Laws”). This Addendum prevails over any conflicting terms of the Agreement. Any data protection addendum that may already exist between the Parties as of the last signature date of this Addendum is superseded and replaced by this Addendum in its entirety.

1. Definitions. For the purposes of this Addendum-- 1.1. The capitalized terms used in this Addendum and not otherwise defined in this Addendum shall have the definitions set forth in the Privacy Laws.

2. Term. 2.1. This Addendum shall remain in effect for so long as the Agreement is in effect between Customer and Vendor, and thereafter for so long as Vendor continues to be in possession of Customer Personal Information (as defined below).

3. Roles and Scope. 3.1. This Addendum applies only to the Collection, retention, use, disclosure, and Sale of Personal Information provided by Customer to, or which is Collected on behalf of Customer by, Vendor to provide services to Customer pursuant to the Agreement or to perform a Business Purpose (“Customer Personal Information”). 3.2. The Parties acknowledge and agree that Customer is a Business and appoints Vendor as a Service Provider to process Customer Personal Information on behalf of Customer. 3.3. The nature and purpose of processing data shall be to provide Customer the services pursuant to the Agreement, this Addendum, and as further instructed by Customer in its use of the services. 3.4. The type of Personal Information to be processed shall be set forth in the applicable statement of work or relevant agreements.

4. Restrictions on Processing. 4.1. During the term of the Agreement, Vendor shall only process Personal Information for the purpose of providing the services to Customer, or otherwise in accordance with Customer’s written instructions, and for no other purposes, except that Vendor may use the Personal Information to develop and improve the services provided to Customer, provide customer support to Customer, and as necessary for compliance with applicable laws. 4.2. Vendor will comply with all applicable obligations of the Privacy Laws and provide the same level of privacy protection as required by the Privacy Laws. 4.3. Vendor shall notify Customer if it engages a subcontractor, or if its subcontractors engage a subcontractor, and enter into a contract with such subcontractors containing the requirements set forth in this Addendum; provided, however, that Customer shall have the right in its sole discretion to object to the engagement of such subcontractors. 4.4. Vendor will ensure that all individuals processing Personal Information are subject to a duty of confidentiality. 4.5. Vendor shall not:

4.5.1. Sell or Share Personal Information.

4.5.2. Retain, use, or disclose Personal Information: (i) for any purpose (including, but not limited to, any Commercial Purpose) other than the business purposes specified under the Agreement, or (ii) outside of the direct business relationship between Customer and Vendor.

4.5.3. Combine Personal Information that Vendor receives from, or on behalf of, Customer with Personal Information that it receives from, or on behalf of, another person, or collects from its own interaction with an individual, provided that Vendor may combine Personal Information to perform any business purpose as defined in any relevant regulations adopted pursuant to the Privacy Laws.

4.6. Vendor certifies that it understands and will comply with the restrictions set forth in this Addendum.

5. Use.

5.1. Vendor warrants that it will not use Customer Personal Information it receives from or collects on behalf of Customer in violation of the restrictions set forth in the Privacy Laws.

5.2. Vendor grants Customer the right to take reasonable and appropriate steps to (i) ensure Vendor utilizes the Personal Information it receives from Customer in a manner consistent with Customer’s obligations under the Privacy Laws and (ii) remediate unauthorized use of Personal Information.

6. Security.

6.1. Vendor hereby represents and warrants that it shall implement and maintain no less than reasonable security procedures and practices, appropriate to the nature of the information, to protect Customer Personal Information from unauthorized access, destruction, use, modification, or disclosure (“Security Incident”) and to preserve the security and confidentiality of Consumer Personal Information in accordance with the Privacy Laws, this Addendum, and the Agreement.

6.2. Vendor shall provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that are necessary to confirm Vendor’s compliance with the Privacy Laws and this Addendum.

6.3. Upon becoming aware of an actual or reasonably suspected Security Incident, Vendor shall notify Customer without undue delay, but in any case within seventy two (72) hours of discovery thereof, and shall provide timely updates and information relating to the Security Incident as it becomes known or as is reasonably requested by Customer. Such information shall include the nature of the Security Incident, the categories and number of individuals affected, the categories and amount of Customer Personal Information affected, the likely consequences of the Security Incident, and the measures taken or proposed to be taken to address the Security Incident and mitigate possible adverse effects.

6.4. Vendor shall notify Customer without undue delay if it can no longer meet its obligations under the Privacy Laws.

6.5. Vendor shall provide Customer with all information necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections, or other technical and operational testing conducted by Customer or an auditor mandated by Customer at least once every 12 months.

6.6. Vendor will provide Customer with all information necessary to enable Customer to conduct and document data protection assessments.

7. Consumer Rights. 

7.1. Vendor shall provide commercially reasonable assistance, including through appropriate technical and organizational measures, as necessary to permit Customer to comply with the Privacy Laws, including responding to complaints or requests from individuals regarding their Personal Information and government orders or requests.

7.2. Upon termination or expiration of the Agreement, or upon direction by Customer, and in any event no later than thirty (30) days after receipt of a request from Customer, Vendor shall promptly delete or return Customer Personal Information as directed by Customer.

7.3. Vendor shall not be required to delete any Customer Personal Information to comply with a Consumer’s request directed by Customer if it is necessary to maintain such information in accordance with Cal. Civ. Code 1798.105(d), in which case Vendor shall promptly inform Customer of the exceptions relied upon under 1798.105(d) and Vendor shall not use Customer Personal Information retained for any other purpose than provided for by that exception.

8. Deidentified Rights.

In the event that either Party shares Deidentified Information with the other Party, the receiving Party warrants that it: (i) has implemented technical safeguards that prohibit reidentification of the Consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of Deidentified Information; and (iv) will make no attempt to reidentify the information.