TERMS AND CONDITIONS TO ASPIRE SUBSCRIPTION SERVICES AGREEMENT
This Aspire Subscription Services Agreement, including the following terms and conditions, any Schedules or Addendums set out herein, and any applicable purchase order or Order Form (collectively, the “Agreement”) is made and entered into by and between you, as a Client (as defined below), and AspireIQ, Inc., a Delaware corporation (“Aspire”). Client and Aspire are each a “Party” or together the “Parties.”
This Agreement is applicable to any individual or entity listed in an Order Form or otherwise using or accessing the Services provided by Aspire (a “Client”).
This Agreement is effective as of the earlier of (i) the Effective Date set out in the applicable Order Form and (ii) the date that Client otherwise begins using or accessing the Services.
Capitalized terms not defined in the body of this Agreement or the applicable Order Form are defined in Part II below.
PART I
1. SUBSCRIPTION SERVICES.
1.1 Aspire Responsibilities. During the Term of this Agreement as specified in the Order Form, Aspire agrees to host, maintain and support the Services and make them available to Client and Users via the Internet, pursuant to the terms of this Agreement and any Documentation posted at its website (as may be amended from time to time).
1.2 Access. Users may access and use the Services during the Term for Client’s business purposes and in compliance with this Agreement and the Documentation. Neither Client nor Users shall sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Services, except as expressly provided for by this Agreement. Client and Users may not decompile, disassemble, translate or reverse engineer the Services; nor remove from the Services any language or designation indicating the confidential nature thereof or the proprietary rights of Aspire or its suppliers.
1.3 Client Responsibilities. Client, for itself and all Users, agrees to: (i) provide Aspire with the cooperation and information reasonably necessary to implement the Services; (ii) use commercially reasonable efforts to (a) prevent unauthorized access to, or use of, the Services, (b) maintain the security and integrity of the Services and the Service Data, including by not sharing accounts or log-in credentials; (iii) promptly inform
Aspire of any actual or reasonably suspected unauthorized access to the Services or Service Data of which they become aware; and (iv) not engaging in any bulk downloading of Creator profiles or Service Data (e.g., scraping) from the Service.
1.4 Service Data and User Data Licenses; Data Security.
1.4.1 Service Data License and Restrictions. During the Term of this Agreement, Aspire grants to Client a limited, non-exclusive, non-sublicensable, non-transferable (except pursuant to Section 10.9), revocable license to access, capture, copy, store, transmit, maintain and display the Service Data as necessary for Client to access and use the Services. Upon termination or expiration of this Agreement, Client agrees to destroy all copies of the Service Data, excluding (i) Service Data incorporated into reports or analytics created during the Term, and (ii) Service Data on back-up media, which may be destroyed or recycled according to Client’s retention schedule for such media.
1.4.2 User Data License and Restrictions. Client grants to Aspire (i) a non-exclusive, non-sublicensable, non-transferable (except pursuant to Section 10.9) license to use, access, capture, exploit, copy, store, transmit, maintain, create derivative works of, and display the User Data solely to provide the Services during the Term; and (ii) a non-exclusive, non-sublicensable, non-transferrable (except pursuant to Section 10.9), worldwide, fully-paid, perpetual license to use anonymized and de-identified User Data in aggregate with that of other clients to improve the Services. Upon termination or expiration of this Agreement, Aspire will destroy all copies of User Data, excluding (a) anonymized and de-identified User Data licensed in Section 1.4.2(ii), (b) User Data on back-up media, which may be destroyed or recycled according to Aspire’s retention schedule for such media, (c) User Data that Aspire is required to retain under Applicable Law (but only for so long as required by such Applicable Law).
1.4.3 Data Security. During the Term of this Agreement, Aspire agrees to (i) maintain commercially reasonable administrative, technical and physical controls to protect User Data stored on its servers from unauthorized access, accidental loss, or unauthorized modification, and (ii) comply with the Data Processing Addendum attached as Part III.
2. OWNERSHIP.
2.1 Ownership. As between the Parties, Aspire owns all right, title and interest, including all IP Rights, in and to the Services, Documentation, Service Data, Aspire trademarks, any Aspire website, and all other services Aspire offers. As between the Parties, Client owns all right, title and interest, including all IP Rights, in and to the User Data, Client trademarks, and any Client website. This Agreement does not transfer or convey to Client or any third party any right, title, interest or IP Rights in or to the Services, Documentation,
Service Data, Aspire trademarks, any Aspire website, or the Service Data, but only a limited right of use revocable in accordance with this Agreement. This Agreement does not transfer or convey to Aspire or any third party any right, title, interest or IP Rights in or to the User Data or Client trademarks, but only a limited right of use revocable in accordance with this Agreement.
2.2 Comments and Ideas. Client or Users may choose to, or Aspire may invite Client or User to, submit comments or ideas about the Services, including about how to improve the Services (“Ideas”). When Client or a User provides Ideas to Aspire, Client agrees for itself and any User that such disclosure is gratuitous, unsolicited, and without restriction, and that Aspire is under no fiduciary or other obligation to Client or User, and that Aspire is free to use Ideas without any attribution or compensation.
3. TERM AND TERMINATION.
This Agreement will begin on the Effective Date set out in the applicable Order Form and remain in effect for the initial minimum term defined therein and any applicable renewal terms, or extensions thereof, unless terminated earlier according to its terms.
Discretionary termination of this Agreement during the Term is only permitted if expressly provided for in the applicable Order Form, and only in accordance with all conditions stated therein. Any Service Fees paid are non-refundable. Creator Fees, which are contractually committed to Creators, are not cancellable or refundable at any time.
Either Party may terminate this Agreement if the other Party breaches any material provision of this Agreement and has not cured the breach within thirty (30) days after receipt of written notice of the breach from the non-breaching Party. A Party may also terminate this Agreement immediately if the other Party is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding.
4. PAYMENT.
4.1 Fees; Billing. Client agrees to pay Aspire the Fees as set forth in the applicable Order Form. Any Creator Fee Budget set forth in such Order Form will be deposited with Aspire within five (5) days of the Effective Date or in accordance any deposit schedule listed therein; additional Creator Fee Budgets will be mutually agreed upon and funded thirty (30) days prior to initiation of any related Services. Where a Creator is to be paid from a Creator Fee Budget, the Creator Fee Budget must be fully funded prior to Client engaging the Creator. Creator Fees will be paid from the Creator Fee Budget to Creators as payable according to the agreements between Client and Creators. If Fees or Creator Fees are to be invoiced to Client, such invoice will be provided electronically (using the Purchase Order Number listed in the applicable Order Form, if any) and will be payable upon receipt of an accurate invoice. If during the Term of this Agreement Client elects to use a Service for which a fee is not specified in an applicable Order Form, Aspire’s then-current public pricing will apply. Unless otherwise agreed upon between Aspire and Client in writing, all Fees shall be subject to automatic charge to Client’s provided payment card maintained in Client’s account profile, which Client is solely responsible for ensuring is accurate and current at all times. Except as specifically permitted under the terms of this Agreement, no Fees paid are refundable for any reason, which means that chargebacks or other refunds are not allowed. By entering into this Agreement utilizing the Services, Client is expressly giving Aspire consent to charge all applicable Fees, whether recurring or singular, to Client’s submitted payment card, without further notice or inquiry to Client. All Fee charges to payment cards may include payment for applicable payment card processing charges and applicable tax, if any. Ifcharges to Client’s submitted payment card do not clear, are rejected, or are made subject to any charge-back, Aspire, in its sole discretion, may notify client and request resolution of the same, or may terminate this Agreement and all associated Services immediately.
With regard to Service Fees or any other Fees due to AspireIQ under this Agreement, where payment for the same is more than 30 days past due or where such Fees are due and have not been paid by the time of Agreement termination and Client has not given written notice of a bona fide dispute regarding such Fees being due, then AspireIQ shall be entitled without further demand or presentment to deducted such amounts due from the Creator Fee Budget. In such case, Client shall then be obligated to either: (1) replenish the difference in the Creator Fee Budget, (2) operate upon a reduced Creator Fee Budget for the remainder of the Agreement Term or (3) in the event of termination, receive a refund of the remaining Creator Fee Budget balance as set forth at Section 3.
4.2 Taxes. The Fees and Creator Fees are exclusive of Taxes. Each Party agrees to be responsible for its own taxes applicable under all laws, including taxes based on a Party’s income, unemployment, social security and other payroll and wage taxes. To the extent Aspire is required to collect any Taxes, Aspire will separately state the amount of tax due on its invoices to Client and such invoices will include either Aspire’s sales tax or use tax permit number.
5. WARRANTY.
5.1 Mutual Warranties. Each Party represents and warrants that it will at all times during the Term of this Agreement comply with all Applicable Laws.
5.2 Except to the extent set forth in Section 5.1 above, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ASPIRE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ASPIRE MAKES NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
6. SURVIVAL.
Sections 1, 2, 4, and 6 to 10 will survive termination or expiration of this Agreement, in addition to any provisions that by their nature should, or by their own express terms do, survive or extend beyond termination or expiration of this Agreement.
7. INDEMNIFICATION AND INFRINGEMENT REMEDIES.
7.1 General Indemnity. To the fullest extent allowed by applicable law, a Party (the “Indemnitor”) agrees to defend the other Party or its Affiliates, and its or their respective officers, stockholders, directors, partners, agents and employees (collectively, the “Indemnified Parties”) against all claims, demands, suits, or actions by a third party (“Claims”), and shall release, indemnify, and hold harmless the Indemnified Parties from any and all liabilities, obligations, losses, damages, deficiencies, penalties, levies, fines, judgments, settlements, costs and expenses, including reasonable attorney’s fees, resulting from a Claim (“Losses”) arising out of or resulting from the (i) gross negligence of or willful misconduct or (ii) material breach by Indemnitor, its Affiliates, and their respective employees and agents, in the performance or nonperformance of the Indemnitor’s obligations under this Agreement. The foregoing sentence will not apply where such Claims or Losses also arise out or result from the gross negligence, willful misconduct or material breach of another Indemnified Party. Losses may include, but are not limited to, injury to or death of any person, or damage to or destruction of any property, real or personal. Indemnity rights are further limited by Section 7.2 and Section 8 below.
7.2 Aspire IP Infringement Remedies. Regarding any Claim or Losses against Client Indemnified Parties arising out of or related to the infringement of any third party IP Rights (the “Infringing IP”), Aspire will, at Aspire’s option after consulting with Client, either: (a) procure the right for Client to continue to use the Infringing IP; (b) modify or replace the Infringing IP so that it is no longer infringing, provided however that such modification or replacement shall not degrade the functionality, operation or performance of the Services; or (c) if subsections (a) and (b) are deemed commercially unreasonable by Aspire, terminate this Agreement and provide Client a pro rata refund of Service Fees paid. Aspire’s obligations in this Section 7.2 do not apply to the extent the Claim arises out of: (i) the failure of Client or any User to implement the Services in accordance with the Documentation; (ii) breach of this Agreement by Client, a User or a Client Indemnified Party; or (iii) the negligence, fraud or willful misconduct of Client, a User or a Client Indemnified Party. THIS SECTION 7.2 STATES ASPIRE’S SOLE LIABILITY AND CLIENT’S SOLE REMEDY RELATED TO ANY INFRINGING IP AS BETWEEN ASPIRE AND CLIENT.
7.3 Indemnification Procedure. The Indemnified Party will promptly give the Indemnitor notice of any Claim for which the Indemnified Party seeks indemnity under this Section 7. The Indemnitor will have reasonable control over the defense and settlement of the Claim; provided however, that the Indemnitor will not enter into any Claim settlement requiring payment of money or other affirmative act (or inaction) by Indemnitee that would be adverse to Indemnitee’s interests, without Indemnitee’s consent. The Indemnified Party may participate in the defense of any Claim through its appointed counsel at its own expense.
8. LIABILITY.
8.1 LIMITATION OF LIABILITY. Except for each Party’s indemnity obligations under Section 7 or its fraud or intentional misconduct, EACH PARTY’S LIABILITY FOR ALL CLAIMS OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO ASPIRE UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES.
8.2 DAMAGES LIMITATION. Except for each Party’s indemnity obligations under Section 7 or its fraud or intentional misconduct, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 DATA BREACH LIMIT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ASPIRE’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS, LOSSES OR OTHER LIABILITY RELATED TO THE UNAUTHORIZED USE OF DISCLOSURE OF DATA OR ANY INDEMNITY OBLIGATIONS SHALL NOT EXCEED $500,000.
9. CONFIDENTIALITY.
9.1 Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge it to any third party, but excluding employees or authorized representatives who need to know such information for Receiving Party to perform its obligations hereunder and who are contractually bound to keep such information confidential. The foregoing will not apply to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is required to be disclosed by law (provided, however, where permitted, the Receiving Party shall provide prior written notice prior to any disclosure required by law and provide Receiving Party the opportunity to seek a protective order or other appropriate remedy); provided that, where permitted, the Receiving Party shall provide written notice prior to any disclosure required by law sufficient for the Receiving Party to seek a protective order or other appropriate remedy. The confidentiality obligations of each Party and its employees will survive the expiration or termination of this Agreement.
9.2 Injunctive Relief. The Receiving Party acknowledges that disclosure of any Confidential Information by it to a third party will give rise to irreparable injury to the Disclosing Party or the owner of such information, not adequately compensated by damages. Accordingly, the Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the undertakings contained herein, in addition to any other legal remedies which may be available, without the requirement of posting bond. The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of the Disclosing Party’s legitimate business interests and are reasonable in scope and content.
9.3 Non-Solicitation. Each of the Parties hereto recognizes that the contact information, skills, qualifications and training of their respective employees and workforce is intrinsically valuable and a part of the Confidential Information of each of them, which may be exchanged in the course of performances under this Agreement. Accordingly, each of the Parties understands that no such information is to be utilized by either of them for any purpose outside the discharge of performances under this Agreement and that in particular, any use of the same to solicit or otherwise engage personnel for any purpose other the performances contemplated herein, would be detrimental to the Disclosing Party. As such, each of the Parties hereto agrees that during the Term of this Agreement, and for a period of one (1) year thereafter, neither of them may engage in any activity for the purpose of soliciting any employee, contractor, agent or personnel of the other away from their present position(s) with the other, and that any actions to do so shall be a material breach of this Agreement. Further, the Parties each agree that in the event of a breach of this provision, the resulting damages may be difficult, if not impossible, to accurately calculate, and therefore each of them agree that in the case of an established breach of this provision, and without limitation on any other remedy which may be available, including legal, injunctive or other equitable relief, the breaching Party shall be liable for liquidated damages in the amount of $10,000.00 per solicited person(s). The foregoing notwithstanding, each of the Parties also acknowledges that in no manner are the terms of this provision intended to (a) prevent any employee, contractor or other person from engaging in their own free exercise of their profession or contractual opportunities or (b) prohibit any concerned employee, contractor or other person from engaging with a Party absent that Party’s solicitation of the same.
10. GENERAL PROVISIONS.
10.1 Successors and Assigns; No Third-Party Beneficiaries. This Agreement is legally binding upon and inures to the benefit of the Parties and their permitted successors and assigns. No third party is intended to
benefit from, nor may any third party seek to enforce, any of the terms of this Agreement.
10.2 Relationship of the Parties. Aspire will furnish all Services as an independent contractor. Nothing contained in this Agreement will be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the Parties, or to grant either Party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other Party.
10.3 Complete Agreement. This Agreement together with any applicable Order Form(s), Schedules, Addendums, and Documentation, constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the specific matters addressed herein. All prior and contemporaneous negotiations and agreements between the Parties on the matters addressed in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty, or agreement by or from the other Party except for those expressly contained in this Agreement. For the avoidance of doubt, this Agreement does not supersede nor encompass preexisting other contemporaneous contracts which may exist and otherwise remain in force between the Parties from time to time, unless specifically stated in writing otherwise.
10.4 Modification. The terms of any applicable Order Form(s) may not be modified or amended other than by a writing executed by both Parties by their duly authorized representatives. The terms of this Agreement may be modified or updated by Aspire from time to time, in such case, notice to Client shall be provided.
10.5 Notice. All notices required or permitted to be given by one Party to the other under this Agreement will be sufficient if in writing and sent by: (a) hand delivery, (b) certified mail, return receipt requested, (c) overnight carrier to the Parties at the addresses set out in an applicable Order Form, or (d) electronic correspondence at the email address or fax numbers set forth in the applicable Order Form(s) or Client’s account sign-up information, or to such other address, email or fax number as the Party to receive the notice has designated by notice to the other Party.
10.6 Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the state of California, without regard to its principles of choice of law. Subject to the provisions of Section 10.11 below, a Party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in San Francisco, California. Client and Aspire each hereby expressly and irrevocably submit to the personal jurisdiction of such courts for the purposes of any such action. The United Nations
Convention on Contracts for the International Sale of Goods will not be applicable to the Parties’ rights or obligations under this Agreement.
10.7 Assignment. No Party may assign any of its rights under this Agreement or delegate its performance under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld; except that Aspire may assign its rights and delegate its performance under this Agreement to (i) an entity that acquires all or substantially all of its assets, (ii) an Affiliate, or (iii) the successor in a merger, acquisition, or reorganization.
10.8 Savings Clause. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.
10.9 Waiver. Any delay by a Party in exercising its rights hereunder will not constitute a waiver of its rights or its entitlement to enforce any provision of this Agreement.
10.10 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement as a result of natural disasters, actions or decrees of governmental bodies, communication line failures not the fault of the affected Party, or any other delay or failure which arises from causes beyond a Party’s reasonable control (a “Force Majeure Event”), the Party whose performance has been so affected will immediately give notice to the other Party and will do everything reasonably possible to resume performance. Upon receipt of such notice, those obligations that cannot be performed through commercially reasonable diligence will be suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement.
10.11 Dispute Resolution. In the event of any Dispute, the Parties shall use their best efforts to amicably resolve the Dispute. "Dispute" means any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof; but excluding a dispute, claim, question, or disagreement regarding Client's non-payment of Fees more than 30 days past due.
10.11.1 Mediation. If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either Party to the other, the Parties agree to mediate the Dispute in good faith according to JAMS' Commercial Mediation Procedures in a location mutually agreeable to the Parties. The Parties will work in good faith with the mediator to attempt to complete the mediation within 90 days of such notice. Any Party refusing to participate in mediation shall be deemed to have irrevocably waived by right to recover attorney fees arising from or related to any concerned Dispute.
10.11.2 Arbitration. If the Parties do not resolve the Dispute through mediation, then, upon notice by either Party to the other, the Dispute will be finally settled by arbitration administered by JAMS San Francisco with the provisions of its Commercial Arbitration Rules (“Rules”) controlling for purposes of procedure. The arbitration will be conducted on a confidential basis before a single arbitrator mutually agreed to by the Parties. The arbitrator will be experienced in contract and technology law. If the Parties cannot agree upon an arbitrator, one shall be selected in accordance with then prevailing JAMS procedure. The arbitrator must issue a written decision or award which provides an explanation for all conclusions of law and fact. Unless otherwise ordered by the arbitrator for purposes of a final evidentiary hearing, the arbitration may be conducted by remote appearance for the convenience of the Parties. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator shall award any prevailing Party on a claim or defense some or all of its reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees. The arbitrator may decide all matters arising out of the dispute including the applicability of the arbitration provisions and issue orders resolving matters in discovery or dispositive motions as well as for injunctive or other equitable relief. EACH OF THE PARTIES HERETO UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT FOR ARBITRATION, THEY ARE IRREVOCABLY WAIVING ANY RIGHT TO A TRIAL BY JURY.
EXCEPT AS PROVIDED BY THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL PROCESS AND REMEDIAL MECHANISM FOR ANY DISPUTE BETWEEN THE PARTIES. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NO PARTY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION OTHER THAN FOR ENFORCEMENT OF AN ARBITRATION AWARD/JUDGMENT OR TO COMPEL COMPLIANCE WITH SUBMISSION TO ARBITRATION. THIS MEANS THAT BY CONSENT TO THIS AGREEMENT, EACH OF THE PARTIES UNDERSTAND AND AGREE THAT THEY MAY NOT PURSUE ANY ACTION IN COURT UPON A REPRESENTATIVE OR CLASS BASIS, NOR MAY THE ARBITRATOR PRESIDE OVER ANY CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL POLICY, AND THE ARBITRATOR SHALL NOT ORDER OR REQUIRE ANY PARTY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW. NOTHING IN THIS AGREEMENT OR IN THIS PROVISION IS INTENDED TO WAIVE THE PROVISIONAL RELIEF REMEDIES AVAILABLE UNDER THE RULES.
IN ADDITION TO THE FOREGOING BASES OF RELIEF AND ORDERS WHICH THE ARBITRATOR SHALL BE EMPOWERED TO GRANT AND ISSUE, THE ARBITRATOR SHALL HAVE THE POWER TO ISSUE ANY AND ALL FORMS OF INJUNCTIVE RELIEF, INCLUDING AS THE SAME MAY RELATE TO
PUBLIC INJUNCTIVE RELIEF AND PUBLIC INTEREST, TO ALL EXTENTS THAT THE SAME COULD BE AWARDED IN ANY INDIVIDUAL LAWSUIT.
10.11.3 Exception. The provisions of this Section 10.11, shall not apply to any action which is brought and maintained within the jurisdiction of Small Claims. Further, in the event that either Party may suffer irreparable harm absent the issuance of immediate injunctive relief, said Party shall be entitled to an initiate an action for that purpose only, such that a motion seeking said relief may first be heard and decided by a court of competent jurisdiction. Upon the deciding of any such motion, the other provisions of this, Section 10.11, shall then control, and a concerned court may order any further proceedings under the matter stayed or transferred as appropriate.
PART II
DEFINITIONS
“Active Project” means a Project that is not archived by Client and as otherwise set out in an applicable Order Form.
“Advanced Integration” means a technological system-level integration of parts of the Services provided to Client with third party platforms, services or systems utilized by Client.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” or “Applicable Laws” means all laws, rules, regulations, and other binding requirements of any governmental authority with jurisdiction which are applicable to any Party under this Agreement. Solely with respect to the Data Processing Addendum at Part III below, Applicable Law additionally means all applicable federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of Personal Data including without limitation: California Consumer Privacy Act of 2018 (“CCPA”); the Gramm-Leach-Bliley Act (“GLBA”), 15 U.S.C. §§ 6801-6827; the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., as amended by the Fair and Accurate Credit Transactions Act (“FACTA”); Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.); the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”); information security breach notification laws (such as Cal. Civ. Code §§ 1798.29, 1798.82 – 1798.84); laws imposing minimum information security requirements (such as Cal. Civ. Code § 1798.81.5, 201 Mass. Code Reg. 17.00; Nev. Rev. Stat. §§ 603A.210, 603A.215); laws requiring the secure disposal of records containing certain Personal Data (such as N.Y. Gen. Bus. Law § 399-H). The Virginia Consumer Data Protection Act; the Colorado Privacy Act, the Connecticut Data Privacy Act, and the Utah Consumer Privacy Act effective Dec. 31, 2023;
“Community” means Client’s selection of individuals or entities which Client elects to manage or engage with through or with the support of the Services.
“Community Member” means an individual or entity included in a Community. “Content” means any text, graphics, images, music, audio, video, data or other information, in any medium or form, created by a Creator.
“Creator” means a person or entity who engages with Client through the Services to provide Content or other services to Client.
“Creator Fee” means an amount to be paid by Client to a Creator for Content.
“Creator Fee Budget” means an amount of funds held by Aspire which the Parties anticipate will be necessary to pay Creator Fees over a mutually agreed period of time.
“Curated Creators” means Creators who are selected by Aspire to be invited to participate in Clients active Campaigns. Curated Creators may be provided as part of the Curated Creators Plus program for specified monthly fees, as defined below, or at Aspire’s sole discretion on a one-time trial and complimentary basis.
“Curated Creators Plus” or “CCP” means the Add On feature whereby Aspire will select a specified number of Creators to invite to all of Client’s existing campaigns with Aspire. The number of invitations will be specified on Client’s Order Form on a per month and aggregate basis across all of Client’s active campaigns. CCP is subject to the following terms in addition to those specified in the Order Form:
• Pricing: The pricing for CCP shall be as specified on the applicable Order Form • Duration: Where Client is electing CCP as part of its initial Agreement Order Form (i.e. for a new Agreement), then CCP shall be an Add On feature that runs for the entire Term of the Agreement, subject to Client’s rights to deactivate and reactivate CCP.
• New Client Activation: Where Client is electing CCP as part of its initial Agreement Order Form, then CCP shall commence at the start of the Agreement and shall have its first month billed for the entirety of the monthly fee regardless of whether or not the Agreement start date falls on a day other than the first day of the month. Thereafter, billing shall take place on the same periodic or other scheduled basis as is consistent with the billing for the other Service Fees charged to Client under the Agreement.
• Existing Agreement Activation: Where CCP is requested as an Add On for an already existing Client Agreement, then the first month billing cycle amount shall be prorated based upon the number of
days remaining in the first month upon activation.
• Deactivation: If Client wishes to deactivate CCP, it may do so at any time on written notice by email to Client’s assigned Aspire contact; however, this notice must be given no later than 10 days before the end of the then current monthly billing cycle in order to take effect at the start of the next month. If the notice is given with less than 10 days before the end of the then current monthly billing cycle, then deactivation will not be effective until the end of the following billing cycle (i.e. deactivation notice on March 20th = deactivation and billing suspension on April 1st, but deactivation notice on March 25th = deactivation and billing suspension on May 1st).
• Reactivation: If Client wishes to reactivate CCP after deactivating it, Client may do so anytime during the Term of the Agreement by giving email notice to Client’s point of contact with Aspire, provided that the reactivation request must be issued no later than 10 days before the end of the given month in order to take effect at the beginning of the following month; otherwise, if the request is made later, then reactivation shall not take effect until the month after the next (i.e. reactivation notice on March 20th = reactivation and billing commencement on April 1st, but reactivation notice on March 25th = reactivation and billing commencement on May 1st).
• Scaling: The Order Form will specify the base number of Curated Curators that will be issued invites during any given month, irrespective of how many active campaigns Client may have at that time. If Client wants Aspire to issue more invites than this during any given month, then the Order Form will also specify additional incremental increases that may be added by Client on a monthly basis, and the associated pricing increase for each increment. Unless otherwise specified in the request, any request to scale-up or scale-down the maximum number of invitations or campaigns, shall be deemed to continue in effect on a monthly basis until changed upon written request by Client, and associated pricing shall apply. In same fashion as provided with respect to deactivation and reactivation, requests to scale-up or scale-down these limits, must be issued by no later than 10 days before the end of a given month in order to take effect on the next immediate month thereafter; otherwise they will not take effect until the month after next.
• Input Rights: Client may provide Aspire with criteria or feedback with respect to Aspire’s selection of Curated Creators to invite but may not participate in the actual selection process of invitees. If Aspire does not receive any input regarding Curated Creator selections, Aspire will simply rely upon the information at its disposal regarding Client’s existing active campaigns and associated Creator selections from existing Services. Aspire is not obligated to utilize any input from Client regarding Curated Creator invitation selections but will make reasonable efforts to do so.
• Applications: The invitation numbers and associated monthly fee rates are for the number of invitations only. These numbers do not guarantee an equivalent number of applications from Curated Creators nor do they guarantee satisfactory terms of agreement with any applying Curated Creator being reached or their satisfactory performance. The purpose of CCP is simply to take the
hassle out of Client having to search for their own Creators and trying to find the best fit, and allowing Aspire to take over that task for Client, utilizing Aspire’s experience within the industry to social media influencer marketing.
• Termination: The minimum commitment for CCP will always be one full month’s billing cycle. After that, Client may terminate its participation in CCP or may simply deactivate and allow its participation to sunset along with the end of the Term of its Agreement. If CCP is selected as an Add On to existing Client Agreement, then the final month billing cycle shall be prorated down on the basis of the number of days in that month which remain upon the expiration of the Agreement.
“Customer Success Manager” or “CSM” means an assigned account manager who will serve as a primary point of contact for Client.
“Documentation” means the instructions, specifications, manuals, sample code, and other content available on the Aspire website or otherwise made available by Aspire with regard to the features, functions or use of the Services.
“Fee” means the fees payable by Client to Aspire as listed in any applicable Order Form or as otherwise provided for in this Agreement and includes, but is not limited to, Service Fees for Technology Services.
“IP Rights” means all copyrights, patents, trademarks, trade secrets, moral rights and other intellectual property and proprietary rights.
“Personal Data” means personally identifiable information, as defined under Applicable Law, that is collected, disclosed, stored, accessed or otherwise processed by Aspire for the purpose of providing the Services to Client.
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Project” means a workflow or process with unique tasks or milestones created by Client within the Technology Services.
“Service Data” means data, information or material uploaded, routed or transmitted to Client or Users by the Services or Aspire, including all IP Rights therein and any derivative works made therefrom (but excluding incorporated User Data, if any).
“Services” means the Technology Services, Customer Success Manager services, Advanced Integrations, and/or other services or support provided by Aspire to Client and Client’s Community pursuant to any applicable Order Form, including any amendments thereto.
“Taxes” means any sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of this Agreement (and excludes any taxes on Aspire income).
“Technology Services” means all technology-related services and supporting platforms as identified in the applicable Order Form(s) or otherwise provided by Aspire to Client under this Agreement, including without limitation, all features, functions, tools, and services, and all related data, statistics, analysis, information, tools, databases, documentation, system and network interfaces, internal network, cloud and disk storage, software applications, operating systems, engines, and internal communications backbone used to provide access to and use of such services, as well as graphics, look-and-feel, and formats, and all IP Rights therein.
“Tracking Event” means the tracking of each separate instance of a click, a conversion, or an impression (where two hundred (200) impressions constitute one (1) instance), measured via pixels or other measurement processes employed by Aspire.
“User” and “Users” means employees, contractors, representatives, agents, or consultants of Client and its Affiliates who are designated by Client to use the Services under this Agreement.
“User Data” means data, information or material uploaded, routed or transmitted by Client, Client Affiliates or Users to the Services, including all IP Rights therein and any derivative works made therefrom.
PART III
DATA PROCESSING ADDENDUM
1. Aspire Responsibilities.
a. Processing. Aspire will process Personal Data to operate and manage a marketing and advertising platform and provide related electronic commerce products and services to its users; to monitor, process and support transactions between users; to comply with legal or regulatory obligations applicable to the processing and retention of payment data; and to improve Aspire’s products and services. Aspire utilizes the Sub-processors listed on Exhibit E (Material Company Subcontractors and Service Providers) to provide the Services.
b. Data Security. Aspire will implement and maintain the data security processes and requirements set out in Sections 6-10 of this Addendum, including with respect to the management and notification of Data
Security Incidents (as defined hereunder).
c. Deletion or return. Aspire will delete all Personal Data of Client after the end of the provision of the Services in accordance with its regular retention schedule for back up media, unless further storage of the Personal Data is required or authorized by Applicable Law.
d. Cooperation with Client. Aspire will provide Client with commercially reasonable assistance and information to: (a) help Client honor Verifiable Consumer Requests from individuals exercising their CCPA rights whose information Aspire received as a result of Aspire’s performance under the Agreement (“Covered Individuals”), and (b) help Client respond to law enforcement or other government agency inquiries related to Covered Individuals.
2. Client Responsibilities.
a. Custody and Use of Personal Data. Client is responsible for the security of all Personal Data in its possession, custody or control. When using Personal Data in conjunction with the Aspire Services, Client will only use such Personal Data as permitted by this Addendum or other agreements between Aspire and Client.
b. Aspire Account Security. Client is responsible for preventing the compromise of its Aspire Account credentials, and for ensuring that its Aspire Account is not used or modified without authorization. ASPIRE SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS OR BREACH OF PERSONAL DATA, USER DATA OR CLIENT INFORMATION OR MATERIAL OTHERWISE WHERE THE SAME ARISES FROM CLIENT’S FAILURE TO MAINTAIN ITS ACCOUNT IN A SECURE FASHION.
c. Disclosure to Data Subjects. Client must ensure that the natural persons to which the Personal Data pertains (“Data Subjects”) are provided with appropriate information regarding the Processing of their Personal Data, including by means of offering a transparent and easily accessible public privacy notice.
d. Client Incident Notification. Except to the extent necessary to comply with applicable legal, regulatory or law enforcement requirements, Client must inform Aspire without unreasonable delay, but in no event more than 48 hours, after it becomes aware of any data security incidents (including a loss, theft, misuse, unauthorized access, disclosure, or acquisition, destruction or other compromise) that has occurred in its systems which affects Personal Data (“Client Data Incident”). Client will provide reasonable information and cooperation to Aspire so that Aspire can fulfill any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Law. Client will further take reasonably necessary
measures and actions to remedy or mitigate the effects of the Client Data Incident and will keep Aspire informed of all material developments in connection with the Client Data Incident.
3. Compliance with Applicable Law.
Each Party will perform all of its obligations under Applicable Law, including data security and confidentiality obligations. Each Party will hold in strict confidence any and all Personal Data processed under this Addendum.
4. CCPA Certification.
Aspire certifies that it understands, and will comply with, the requirements of the CCPA as provided for in this Addendum.
5. Programs and Policies.
a. Security Program. Aspire maintains and enforces a security program that addresses the management of security and the security controls employed by Aspire. The security program includes: (i) documented policies that Aspire formally approves, internally publishes, communicates to appropriate personnel and reviews at least annually; (ii) documented, clear assignment of responsibility and authority for security program activities; (iii) policies covering, as applicable, acceptable computer use, data classification, cryptographic controls, access control, removable media, and remote access; and (iv) regular testing of the key controls, systems and procedures.
b. Privacy Program. Aspire maintains and enforces a privacy program and related policies that address how Personal Data is collected, used and shared.
6. Risk and Asset Management.
a. Risk Management. Aspire performs risk assessments and implements and maintains controls for risk identification, analysis, monitoring, reporting, and corrective action.
b. Asset Management. Aspire maintains and enforces an asset management program that appropriately classifies and controls hardware and software assets throughout their life cycle.
7. Worker Education.
a. Workers. All Aspire employees, agents, and contractors (collectively “Workers”) acknowledge their data security and privacy responsibilities under Aspire’s policies.
b. Worker Controls. For Workers who Process Personal Data, Aspire: (i) implements pre-employment background checks and screening; (ii) conducts security and privacy training; (iii) implements disciplinary processes for violations of data security or privacy requirements; and (iv) upon termination or applicable role change, promptly removes or updates Worker access rights and requires the return or destruction of Personal Data.
8. Network and Operations Management.
a. Policies and Procedures. Aspire implements policies and procedures for network and operations management. Such policies and procedures address: hardening, change control, segregation of duties, separation of development and production environments, technical architecture management, network security, virus protection, media controls, protection of data in transit, data integrity, encryption, audit logs, and network segregation.
b. Vulnerability Assessments. Aspire performs periodic vulnerability assessments and network penetration testing on systems and applications that Process Personal Data.
9. Access Control.
a. Access Control. Aspire implements access controls designed to maintain the confidentiality of Personal Data. Such controls include: (i) authorization processes for physical, privileged, and logical access to facilities, systems, networks, wireless networks, operating systems, mobile devices, system utilities, and other locations containing Personal Data; and (ii) granting access only if it is logged, strictly controlled, and needed for a Worker or third party to perform their job function.
b. Authentication. Aspire authenticates each Worker’s identity through appropriate authentication credentials such as strong passwords, token devices, or biometrics.
10. Data Security Incident Management and Notification.
a. Incident Management Program. Aspire implements a data security incident management program, compliant with Applicable Law, that addresses management of data security incidents including a loss, theft, misuse, unauthorized access, disclosure, or acquisition, destruction or other compromise of Personal Data (“Data Security Incident” or “Incident”).
b. Incident Notification. To the extent necessary to comply with applicable legal, regulatory or law enforcement requirements, Aspire shall inform Client without unreasonable delay, but in no event more than
48 hours, after it becomes aware of any Incident that has occurred in its systems which affects Personal Data.
c. Response. Aspire will work together in good faith with Client to respond to the Incident. Response may include: identifying key partners, investigating the Incident, providing regular updates, and determining notice obligations. Except as may be required by law, Aspire may not notify Client’s affected customers about an Incident without first consulting Client.
PART IV
SERVICE LEVEL ADDENDUM
1. Availability. Aspire will make the Services available 99.8% of the time. Availability will be calculated over the previous 90 days, on a rolling basis, as follows:
((total – downtime + excluded)/total * 100) ≥ 99.8
Where:
• Service means the latest production version of the online services made available by Aspire.
• total means the total number of minutes over the previous 90 days, on a rolling basis;•
• downtime means minutes during which the Services are not available; and
• excluded means any downtime caused by planned downtime of which Aspire provides the notice stated in Section 3 below, or force majeure events, which for purposes of this Exhibit means circumstances beyond Aspire’s reasonable control.
2. Planned Maintenance. Aspire will provide advance notice of any planned downtime, and will schedule planned downtime outside of standard business hours (7 a.m. to 5 p.m. U.S. Pacific time) or during such other hours where this is reasonably designed to minimize the impact on users. Aspire will use commercially reasonable efforts to provide at least 48 hours’ advance notice.
3. Reporting. Aspire will provide Client with access to statistics on Service availability over the previous 90 days, on a rolling basis, upon request but no more than once per 60-day period.
4. Support Contacts. Aspire Support can be contacted via email at help@AspireIQ.com. Support tickets are triaged based on the urgency of the inquiry. If reporting an urgent matter or critical issue, please make this clear in the email to the Support team.
PART V
MATERIAL COMPANY SUBCONTRACTORS AND SERVICE PROVIDERS
Effective as of January 1, 2023
