ASPIRE SOFTWARE
Terms of Service
Prior Version: December 2023 | February 2024 | July 2024
Last Updated: October 16, 2024
API terms: https://www.youraspire.com/legal/api-terms
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,” 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” or “Software”), 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 this Agreement carefully. By accessing or using the Service, you accept this Agreement and agree to use the Service in compliance with this 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 this 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 this 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 this Agreement, and if we do we will post the changes on this page and will indicate at the top of this page the date this Agreement was 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 this Agreement is effective and binding constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this Agreement, you must stop using the Service immediately. You should periodically visit this page to review the current version of this Agreement so you are aware of any revisions. If you do not agree to abide by this Agreement, you shall not access, browse, or use the Service.
THIS AGREEMENT CONTAINS 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 this Agreement or posted on or within the Service from time to time, including without limitation 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 this Agreement. We may amend the User Specifications from time to time without amendment of this 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 this Agreement, and the terms of your subscription to the Service, including payment of the applicable 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 this Agreement and the user documentation applicable to the Service (the “Documentation”); and (iii) by Authorized Users as defined in Section 4. 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), and Mobile Apps, “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 this 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 applicable Order.
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 14.4. 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, we may introduce features and capabilities as part of the Service that utilize artificial intelligence, machine learning, or similar technologies (the “AI Tools”). Any content generated by AI Tools is not reviewed by Aspire and you are solely responsible for reviewing such content for purposes of accuracy before publishing or utilizing such content.
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, without limitation, 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 this Agreement (collectively, the “Hosting Technology”). The Hosting Technology includes an allotment for file upload storage in the monthly subscription per location. Aspire reserves the right to charge for additional storage fees which Aspire may incur in relation to the provision of Services to Customer.
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 this Agreement, 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) sublicense, lease, rent, loan, otherwise transfer or allow access to, or use of, the Protected Technology by any third party; (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 Affilates 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 this 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) in violation of any applicable law or regulation, including without limitation those relating to privacy, data protection and access to information and (2) that you will at all times make all disclosures as required thereby (including without limitation any required within your privacy policy); (k) make any copies of Protected Technology for any reason whatsoever; and (l) use the Service in violation of any 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, and 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, and (4) any registration requirements relating to do not call lists.
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 this 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 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 this 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 this Agreement “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, you control, 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 this Agreement. 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 this 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, without limitation, 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 this Agreement, and subject to Customer’s payment of all 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 this 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 this 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.
6.2 Invoices. Customer shall set up an automated clearing house (“ACH”) monthly draft from the Customer’s bank account for payment of the 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. 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 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, with prior notice (email acceptable), 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 this 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, 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 Fees in any one (1) month constitutes a material breach of this 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 this 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 this 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 this Agreement or any other agreement you have in place with Aspire or its Affiliates.
7. Taxes. Any prices provided to Customer exclude all applicable sales, use and other taxes, 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 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 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.
8. Term and Termination.
8.1 Term. This 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, this 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 this 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 this 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 Termination for Business Reasons. Aspire may terminate this Agreement without further liability in the event that Aspire’s costs to provide the Service increase substantially or it shall become difficult or impossible for Aspire to continue to provide the Service contemplated herein, for any reason, upon no less than ninety (90) days prior written notice given to Customer.
8.4 Mutual Termination. Either party may terminate this 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 this Agreement for any reason, any amounts owed to Aspire will be immediately due and payable.
8.5.2 Cancellation Fees. If, at any time during the Term, Aspire terminates this Agreement for cause or Customer terminates this Agreement for any reason other than for cause, the Customer shall pay a separation fee equal to the Subscription Fees for the remainder of the then-current term. During the Term, the cancellation fees shall be equal to the Fees that would accrue and otherwise become due and payable for the remainder of the then-current Term, had this Agreement not been terminated.
8.5.3 Return of Confidential Information. In addition to the foregoing, upon termination or expiration of this 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 this Agreement, Customer’s access to, and use of, the Service shall terminate.
8.5.5 Destruction of Information. Aspire will, upon termination or expiration of this Agreement for any reason, and at Customer’s written request made prior to any such expiration or termination, use commercially reasonable efforts to provide an export of Customer’s data, files and other information stored in the Service and send such copy to Customer in a mutually agreeable format. These services shall be delivered at Aspire’s then current time and materials rate (provided upon request). Thereafter, all of Customer’s data, files and other information stored in the Service and/or other Protected Technology will be unavailable and deleted, and none of Aspire, its hosting partner nor any of their respective Representatives will have any further obligation or liability regarding such data, files and/or information.
8.5.6 Survival. All provisions of these Terms which by their nature should survive termination, shall survive termination, including, without limitation, Sections 3, 8, and 10 through 30.
9. Customer’s Obligations.
9.1 Service Obligations. Customer understands that successful performance of Aspire’s obligations under this 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 perform in accordance with this Agreement or the Documentation 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 NON-CONFORMITY. 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. 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. CUSTOMER IS SOLELY RESPONSIBLE FOR CONFIGURING ITS INSTANCE OF THE SERVICE IN A WAY THAT ENABLES CUSTOMER TO COMPLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS. 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, BUT CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ENSURING THAT SUCH CONFIGURATION MEETS ALL BUSINESS AND LEGAL REQUIREMENTS APPLICABLE TO CUSTOMER, INCLUDING THAT CUSTOMER’S CONFIGURATION AND USE OF THE SERVICE COMPLIES WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.
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 set forth at https://www.youraspire.com/legal/data-protection-addendum shall apply and shall be deemed as an integrated part of this 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 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 harmless from and against every claim brought by a third party, and any related liabilities, losses, damages, costs and expenses, including, without limitation, 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 doing 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, Affilates, or Consultants) to comply with (i) any portion of this Agreement, including its representations, warranties, covenants and obligations, (ii) any representation, warranty, or agreement referenced in this 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, materials or information Customer provides in the Service; or (e) any dispute or issue between Customer and any third party. 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 ASPIRE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, 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 ASPIRE HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ASPIRE TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION 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 CLAIM; AND (B) $100.
EACH PROVISION OF THIS 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 THIS 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 THIS 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 ABOVE 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 OF SERVICE, 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.
14.1 Service. The Protected Technology, the Documentation, 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 this 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.
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 this Agreement.
14.3 Customer Data. “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. Notwithstanding the foregoing, Customer Data does not include non-identifiable aggregated data compiled by Aspire in connection with Customer’s (including its Authorized Users’) use of the Service. Customer may upload Customer Data to the Service and link other services to the Service to integrate Customer Data from those other services. In addition, Aspire may collect registration and other information statistical and usage data about Customers’ and Authorized Users’ use of the Service, and may use such data for any purpose in accordance with applicable law and our Privacy Policy. Customer hereby grants Aspire and its Affiliates a non-exclusive, non-sublicensable (except to service providers and subcontractors providing services to Aspire), transferable, worldwide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, transmit, distribute and otherwise exploit all such information: (a) internally in any way subject to Aspire’s obligation of non-disclosure in Section 16 below, and compliance with applicable laws such as privacy laws; and (b) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with our Privacy Policy. Customer may only upload text, photographs, videos, or other audiovisual or informational content (collectively, “Content”) to the Service if Customer owns the rights to that Content, or if another rights holder has given Customer permission.
14.4 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 this 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 this 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 only 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 this 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); or (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.
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 this 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 this Agreement, 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 this Agreement without the other party’s prior written consent except that either party may make any disclosures concerning this Agreement or its business relationship with the other party that are, in the opinion in its counsel, required under any laws or regulations to which such party may be subject.
17. Exclusivity. Customer hereby acknowledges that the Service is invoiced to Customer based on Customer’s monthly revenues. As such, Customer hereby agrees that during the Term, except with the prior written consent of Aspire, Customer shall use Aspire as its exclusive landscape business software provider in order to render proper and accurate invoicing.
18. Notices. Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this 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 200
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 this Agreement or any right, duty, or obligation under this Agreement, without Aspire’s prior written consent, including, for the avoidance of doubt, to any acquirer of Customer’s business. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. Aspire may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without Customer’s consent.
In the event that Customer acquires other businesses or entities after the date of this Agreement, the employees and contractors of such businesses or entities may constitute Authorized Users under this 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 this 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.
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 this 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 this 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. Export Regulations. 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.
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, flood or 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 this 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. Customer hereby warrants and represents to Aspire that: (i) the execution, delivery, or performance by Customer of this Agreement will not contravene any law, regulation, or legal requirement applicable to or binding on Customer, including but not limited to, all export and import control laws and regulations and privacy laws and regulations during use of its Service, or result in a breach of, or constitute a default under, or contravene any provisions of, any agreement or instrument to which it is a party or by which it is bound, and (ii) Customer’s configuration and use of the Service and all Service features will comply with all applicable laws, rules and regulations.
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 this 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 this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this 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).
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 200, 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 this 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 clause (b) above 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 clause (b) are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
28. Severability. If a court of competent jurisdiction determines that any provision of this 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 this 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 this Agreement, while the remainder of this Agreement shall remain in full force and effect. However, if in Aspire’s opinion deletion of any provisions of this 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 this 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 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.
30. Entire Agreement; Modifications. This 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 this 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 this 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 this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, purchase order, confirmation, correspondence, or otherwise, unless Aspire specifically agrees to such provision in writing and signed by an authorized agent of Aspire.
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 this Agreement or any agreement you have in place with Aspire, including without limitation 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, WITHOUT LIMITATION, 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 without limitation 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, without limitation, 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 this 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”). Aspire may charge incremental fees in connection with Customer’s access to such 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 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 without limitation, 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 9.5.5 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 Aspire 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 of Service, 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 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 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, for the avoidance of doubt, 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 these Terms of Use, you shall not acquire any right, title or interest in the Website or any PI Websites Content. Any rights not expressly granted in these Terms of Use 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 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 this 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 extent 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, without limitation, 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, without limitation, (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, modification 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 this Agreement. All rights in this paragraph are granted without any compensation of any sort to you.
(D) If your 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, without limitation, 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, without limitation, PI Website 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 Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any PI Website 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 Software 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 Software features which relate to the collection, use, possession, storage, or transmittal of Biometric Data (the “Biometric Features”) within the Software. The Biometric Features make use of an integration between the Software and certain third-party software intended to derive Biometric Data from photographs of individuals submitted by Customer to the Software, which third-party software thereafter analyzes photographs submitted to the Software by Customer’s users of the Software (including any mobile application) upon login to validate the identity of each such employee in connection with such each employee’s utilization of the Software (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 Software 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 Software;
it is solely responsible for complying with any Biometric Information Privacy Laws to which it is subject through Customer’s use of the Software or Customer’s collection, use, possession, storage, or transmittal of any individual’s Biometric Data in connection with using the Software; and
nothing in this Agreement, any terms incorporated by reference herein, any click through or other terms and conditions, or within the functionality of the Software 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 Software, 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 Software, 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 Software; and
consult with its own legal counsel prior to making use of any functionality within the Software 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 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 Software (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 Software, 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 Software 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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