AspireIQ Master Agreement for Digital Content and Brand Management Services
1. DIGITAL CONTENT AND MANAGEMENT SERVICES.
1.1 AspireIQ Responsibilities. During the Term of thisAgreement, AspireIQ agrees to host, maintain and support the Services and makethem available to Client and Users via the Internet, pursuant to the terms ofthis Agreement, any controlling Order Form, and any Documentation posted at itswebsite (as may be amended from time to time).
1.2 Access. Users may access and use theServices during the Term for Client’s business purposes and in compliance withthis Agreement and the Documentation. Neither Client nor Users shall sell,resell, license, sublicense, distribute, rent, lease or otherwise commerciallyexploit the Services, except as expressly provided for by this Agreement.Client and Users may not decompile, disassemble, translate or reverse engineerthe Services; nor remove from the Services any language or designationindicating the confidential nature thereof or the proprietary rights of AspireIQor its suppliers.
1.3 Client Responsibilities. Client, for itself and all Users, agrees to: (i) provide AspireIQ withthe 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 theServices and the Service Data, including by not sharing accounts or log-incredentials; (iii) promptly inform AspireIQ of any actual or reasonablysuspected unauthorized access to the Services or Service Data of which theybecome aware; and (iv) not engage in any bulk downloading of Creator profilesor Service Data (e.g., scraping) from the Service. Client further agrees that, as to any ManagedCampaign Services, AspireIQ is authorized to execute Creator Agreements andotherwise work with Creators by and on behalf of Client, as approved by Clientin advance.
1.4 Service Data and User DataLicenses; Data Security.
1.4.1 Service Data License and Restrictions. During theTerm of this Agreement, AspireIQ grants to Client a limited, non-exclusive,non-sublicensable, non-transferable (except pursuant to Section 10.10),revocable license to access, capture, copy, store, transmit, maintain anddisplay the Service Data as necessary for Client to access and use theServices. Upon termination or expiration of this Agreement, Client agrees todestroy all copies of the Service Data and certify the same in writing toAspireIQ, excluding (i) Service Data incorporated into reports or analyticscreated during the Term by Client which do not include Confidential Informationor Intellectual Property of AspireIQ, , (ii) Service Data incorporated into agiven deliverable under the Services, and (iii) Service Data stored securely onback-up media, subject to destruction or recycling, in accordance with Client’sregular retention schedule and policies for such media.
1.4.2 User Data License and Restrictions.Client grants to AspireIQ (i) a non-exclusive, non-sublicensable,non-transferable (except pursuant to Section 10.10) 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 toSection 10.10), worldwide, fully-paid, royalty-free, perpetual license to useaggregated, anonymized and de-identified User Data to improve the Services,subject to Applicable Law. Upon termination or expiration of this Agreement, AspireIQwill destroy all copies of User Data and certify the same in writing to Client,excluding (a) aggregated, anonymized and de-identified User Data licensed inSection 1.4.2 (ii), (b) User Data stored securely on back-up media, subject todestruction or recycling, in accordance with AspireIQ’s regular retention andpolicies for such media, and (c) User Data that AspireIQ is required to retainunder Applicable Law, including for regulatory or other legal compliancepurposes (but only for so long as required by such Applicable Law).
1.4.3 Data Security. During the Term of this Agreement, AspireIQagrees to (i) maintain commercially reasonable administrative, technical andphysical controls to protect User Data stored on its servers from unauthorizedaccess, accidental loss, or unauthorized modification, and (ii) comply with theData Processing Addendum attached as Schedule B.
2. OWNERSHIP.
2.1 Ownership. As between the Parties, AspireIQowns all right, title and interest, including all IP Rights, in and to theServices, Documentation, Service Data, AspireIQ Confidential Information,AspireIQ trademarks, any AspireIQ website or digital platform, and all otherservices or performances that AspireIQ offers or provides. As between the Parties, Client owns allright, title and interest, including all IP Rights, in and to the User Data,Client trademarks, Client Confidential Information, and any Client website.This Agreement does not transfer or convey to Client or any third party anyright, title, interest or IP Rights in or to the Services, Documentation,Service Data, AspireIQ trademarks, any AspireIQ website or part of any AspireIQdigital platform, or the Service Data, but only a limited right of userevocable in accordance with this Agreement, including as set out at Section1.4.1 above. This Agreement does not transfer or convey to AspireIQ or anythird party any right, title, interest or IP Rights in or to the User Data orClient trademarks, but only a limited right of use revocable in accordance withthis Agreement, including as set out at Section 1.4.2 above.
2.2 Comments and Ideas. Client or Users may choose to, or AspireIQ may invite Client or anyUser to, submit comments or ideas about the Services, including about how toimprove the Services (“Ideas”). When Client or a User provides Ideas toAspireIQ, Client agrees for itself and any User that such disclosure isgratuitous, unsolicited, and without restriction, and that AspireIQ is under nofiduciary or other obligation to Client or any User regarding the same, andthat AspireIQ is free to use such Ideas without any attribution or compensationto Client or such Users.
2.3. Trademark Grant. Each Party grants to the other Party a non-exclusive, non-transferable(other than as allowed in Section 10.9), revocable, worldwide, royalty-freeright during the term of this Agreement to use the grantor Party’s name andtrademark to 1) execute upon the performances called for herein, and 2) toaccurately disclose and identify the service provider relationship set forthherein. When using a Party’s trademarks, each Party will comply with thetrademark usage guidelines made available to it by the other. All goodwill generated from the use of thegrantor Party’s name and trademark in the foregoing regard, if any, will inureto the benefit of the concerned trademark owner.
3. TERM AND TERMINATION.
This Agreement will commence onthe Effective Date and, unless terminated earlier in accordance with the termsof this Agreement, will remain in force and effect for as long as Company isperforming Services pursuant to an Order Form (such period, the “Term”).For clarity, termination of an Order Form does not terminate any other OrderForm or this Agreement. Except as otherwise set forth herein, an Order Form isnon-cancelable, and deposits to the Creator Fee Budget are not cancellable orrefundable; however, any unused Creator Fee Budget may be reallocated to analternative campaign. Either Party mayterminate this Agreement and all Order Forms if the other Party breaches anymaterial provision of this Agreement and has not cured the breach within thirty(30) days after receipt of written notice of the breach from the Partyasserting such breach. Upon Client’s termination for material breach byAspireIQ, AspireIQ will issue a pro rata refund of any Service Fees paid inadvance. Upon any event of termination or notice thereof (including of intentnot to renew), the Parties further agree to cooperate with one another tofacilitate an orderly wind-down to their relationship and to meet anyobligations which will nonetheless remain due and owing in advance of the giventermination date or which will either expressly under this Agreement, or bytheir nature, survive such termination.
Where this Agreement should terminate for any reason or no reason, anydeposited monies held by AspireIQ for Client as part of a Creator Fee Budget,shall also be returnable to Client within 60 days of termination, less anymonies that 1) are committed under contract with Creators, and 2) any sum ofService Fees then still due and owing to AspireIQ. A Party may also terminate this Agreementimmediately if the other Party is the subject of any voluntary or involuntarybankruptcy or insolvency petition or proceeding.
4. PAYMENT.
4.1 Fees. Client agrees to pay AspireIQthe Fees as set forth in each Order Form and as may be provided for in thisAgreement. Except as expressly providedin the Agreement for AspireIQ's material breach, all Service Fees arenon-refundable. Campaign Services involve custom work product and arenon-cancelable once initiated. Service Fees do not include fees paid by Clientto Creators on the platform (“Creator Fees”). Any Creator Fees are owed inaddition to the Service Fees.
4.2 Creator Fee Budget and Funding. Any Creator Fee Budget will bedeposited with AspireIQ within 5 days of the Effective Date or in accordanceany deposit schedule listed in an Order Form; additional Creator Fee Budgetswill be mutually agreed upon and funded no less than 30 days prior toinitiation of any Services requiring the utilization of funding from the same.In any case, where a Creator is to be paid from a Creator Fee Budget, theCreator Fee Budget must be fully funded prior to Client, or AspireIQ on behalfof Client, sending Campaign proposals to or engaging the Creator. Creator Fees will be paid from the CreatorFee Budget to Creators as payable according to the agreements between Clientand Creators, and are not refundable and non-cancelable except as otherwise setforth herein. Client agrees to pay a handling fee for Creator Fee Budgetpayments as set out athttps://www.aspire.io/legal/handling-and-processing-fees, which fees may berevised by Aspire no more than annually.
4.3 Fulfillment & Shipping Fee Budget. If applicable to an Order Form, the Fulfillment & Shipping FeeBudget set forth on the Order Form represents funds held by AspireIQ to be usedto pay for shipping and fulfillment services through third party partners. Suchservices may include package design, materials, execution of all kittingservices, shipping costs, returns and package management. Client may elect touse its own shipping partner for all or part of the above services providedthat any amounts payable to such partner are directly billed to and paid byClient. The Fulfillment & Shipping Fee Budget is just an estimate. Actualcosts may vary. Should costs exceed the budget amount, AspireIQ will invoiceClient such additional Fulfillment & Shipping Fees upon completion of therelated Campaign, due upon receipt.
4.4 Fulfillment Fee Budget. Ifapplicable to an Order Form, the Fulfillment Fee Budget set forth on the OrderForm represents funds held by AspireIQ to be used to pay for fulfillmentservices through third party partners. Such services may include packagedesign, materials, and execution of all kitting services. Shipping and relatedservices are not included. Client mayelect to use its own shipping partner for shipping services provided that anyamounts payable to such partner are directly billed to and paid by Client.Client will be responsible for shipping costs billed to Aspire by Client’sshipping partner (such as for returns, undeliver fables, or other shippingerrors). The Fulfillment Fee Budget is just anestimate. Should any additional Fulfillment Fees be incurred beyond the amountabove, AspireIQ will invoice Client the additional Fulfillment Fees uponcompletion of the related Campaign, due upon receipt.
4.5 Paid Media Management Fee. Where the parties execute an Insertion Order or other ad purchaseagreement (collectively “InsertionOrder”) for the placement of advertisements with a search, social media, orother platform or publisher, Client shallpay AspireIQ the Paid Media Management Service Fee (“PMMSF ”) provided fortherein. The PMMSF in any Insertion Order will becalculated as a percentage of the monthly ad spend associated with eachInsertion Order, subject to the Minimum PMMSF below. Unless modified by an Insertion Order, thePMMSF is as follows: 10%: for the first $100,000 of ad spend within a calendarmonth; 7.5%: for over $100,000 up to $250,000 of ad spend within a calendarmonth; and 5%: for over $250,000 of adspend within a calendar month.
Irrespective of the foregoing rates, a monthly minimum fee as set forthin the Insertion Order (the “Minimum PMMSF”) shall apply irrespective of actualad spend. If one or more Campaigns are live for less than a full calendarmonth, the Minimum PMMSF will be prorated based on the number of days that theCampaign(s) were live within the calendar month.
4.6 Billing. Invoices will be providedelectronically (using the Purchase Order number listed above, if any) and willbe due and payable as follows: Service Fees will be invoiced on the start dateof the Campaign Services listed in the applicable Order Form and due withinfifteen (15) days of Client’s receipt of such invoice. Creator Fee Budget andFulfillment Fee Budget will be invoiced on the start date of the CampaignServices listed in the applicable Order Form and due upon receipt. Paid MediaManagement Service Fees will be calculated by AspireIQ and invoiced to Clienton a monthly basis and shall be due within fifteen (15) days of Client’sreceipt of such invoice. All prices listed will be in US dollars and do notinclude any applicable sales tax.
If during the Term of this Agreement Client elects to use a Service forwhich a fee is not specified in an Order Form, AspireIQ’s then-current publicpricing will apply. Where any ServiceFees or any other Fees due to AspireIQ are more than 30 days past due or dueand owing upon termination of this Agreement and Client has not previously ingood faith disputed such Fees being due (as reasonably determined byAspireIQ),, then AspireIQ shall be entitled without further demand orpresentment to deducted such amounts due from the Creator Fee Budget. In such case, Client shall then be obligatedto either 1) replenish the difference in the Creator Fee Budget, 2) operateupon 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 FeeBudget balance as set forth at Section 3. Any chargeback on any credit cardpayment shall constitute a material breach of the Agreement and entitle Aspireto terminate this Agreement and/or any Order Form without further notice, atAspireIQ, Inc.’s sole discretion. Anyamounts due to AspireIQ under this Agreement or any Order Form that remainunpaid for more than thirty (30) days from the date of the applicable invoiceshall accrue interest from the date such amounts were originally due at thelesser of (i) one and one-half percent (1.5%) per month, compounded monthly, or(ii) the maximum rate permitted by Applicable Law, until paid in full. Theaccrual of interest shall not excuse or cure any payment default, nor shall itlimit any other remedy available to AspireIQ. In the event AspireIQ refers anyunpaid amounts to outside counsel or a collection agency, or initiates anylegal proceeding to recover amounts due hereunder, Client shall be liable forall reasonable costs of collection, including without limitation reasonableoutside attorneys' fees and expenses, court costs, and any fees charged by acollection agency, regardless of whether such proceeding results in a finaljudgment. The foregoing rights are cumulative and in addition to, and not inlieu of, AspireIQ's right under this Section 4.5 to deduct overdue amounts fromthe Creator Fee Budget.
4.7 Taxes. The Fees and Creator Fees areexclusive of Taxes. Each Party agrees tobe responsible for its own taxes applicable under all laws, including taxesbased on a Party’s income, unemployment, social security and other payroll andwage taxes. To the extent AspireIQ is required to collect any Taxes, AspireIQwill separately state the amount of tax due on its invoices to Client and suchinvoices will include either AspireIQ’s sales tax or use tax permit number.Unless provided otherwise in an Order Form, AspireIQ’s payments vendor willprovide any required W-9 forms to Creators.
5. WARRANTY.
5.1 Mutual Warranties. Each Partyrepresents and warrants that it will at all times during the Term of thisAgreement comply with all Applicable Laws.
5.2 Client Warranties. Client further represents and warrants that (i) it has full legalauthority to enter into this Agreement and each Order Form and to grant therights set forth herein, and the person executing this Agreement on Client'sbehalf has full authority to bind Client; (ii) all information, content,materials, and product or service claims provided or approved by Client for usein connection with the Services are accurate, truthful, and substantiated, andClient shall promptly notify AspireIQ if any previously approved materials orclaims become inaccurate or insufficiently substantiated; (iii) Client owns orhas obtained all rights, licenses, and consents necessary to provide itsmaterials to AspireIQ and to authorize AspireIQ and Creators to use suchmaterials as contemplated by this Agreement, and such authorized use does notand will not infringe any third-party intellectual property, privacy, orpublicity rights; (iv) Client is not subject to any consent decree, injunction,or other regulatory or judicial action that would restrict any advertising ormarketing claim Client intends to make through the Services, and Client shallpromptly notify AspireIQ if it becomes subject to any such action or receivesany related governmental inquiry or third-party claim during the Term; (v)Client's products and services that are the subject of any Campaign comply withall Applicable Laws, and Client shall promptly notify AspireIQ of any productrecall, safety notice, or regulatory warning relating to any product or servicethat is the subject of an active Campaign; and (vi) Client has disclosed toAspireIQ any guild, union, or collective bargaining agreement applicable to theproduction or use of any Campaign materials, and Client shall be solelyresponsible for all related obligations and payments arising therefrom.
5.3 AspireIQ Warranties. AspireIQ further represents andwarrants that (i) it is the owner of the Services or otherwise has the right togrant Client the rights and license set forth in this Agreement, (ii) theServices will be provided by qualified personnel in a professional and skillfulmanner, and (iii) the Services do not contain a virus, lockup program ordevice, or any computer code that would permit AspireIQ to access, disable orimpair any Client hardware, software, network, system, or infrastructure.
5.4 Except to the extent set forth in Sections 5.1, 5.2, and 5.3 above, THESERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND,EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ASPIREIQ EXPLICITLYDISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSEOF DEALING OR USAGE OF TRADE. ASPIREIQ MAKES NO WARRANTY THAT THE SERVICES WILLBE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
5.5 Platform and Third-Party Channel Limitations. The Services may involve the publication, distribution, oramplification of Campaign Materials on or through social media platforms,digital channels, or other third-party environments that are not owned,operated, or controlled by AspireIQ (each, a "Third-Party Platform").AspireIQ makes no representation or warranty, and assumes no responsibility orliability, with respect to: (i) the continued availability, visibility, oraccessibility of any Campaign Materials once published to a Third-PartyPlatform; (ii) the removal, suppression, demonetization, restriction, or otheradverse treatment of any Campaign Materials by a Third-Party Platform, whetherpursuant to such platform's terms of service, community guidelines, algorithmicprocesses, or otherwise; (iii) any change in a Third-Party Platform's policies,features, functionality, measurement methodology, or advertising rules that affectsthe reach, performance, or delivery of any Campaign; or (iv) any failure by aThird-Party Platform to deliver impressions, engagements, or other performancemetrics at projected or historically observed levels. Client acknowledges thatThird-Party Platform actions of the types described in this Section 5.5 areoutside AspireIQ's reasonable control, shall not constitute a breach of thisAgreement or any Order Form by AspireIQ, and shall not entitle Client to anyrefund, credit, fee reduction, or other remedy against AspireIQ. Where aThird-Party Platform action materially affects the delivery or completion of aCampaign, the Parties agree to cooperate in good faith to identify reasonablealternative approaches, subject to mutual agreement on any associatedadjustment to scope or fees.
6. SURVIVAL.
Sections 2, 4, and 6 to 10 will survive termination or expiration ofthis Agreement, in addition to any provisions that by their nature should, orby their own express terms do, survive or extend beyond termination orexpiration of this Agreement.
7. INDEMNIFICATION.
7.1 General Indemnity. To the fullest extent allowedby applicable law, each Party (the “Indemnitor”), with respect to theobligations, rights and performances under this Agreement, agrees to defend theother Party or its Affiliates, and its or their respective officers,stockholders, directors, partners, agents and employees (collectively, the “IndemnifiedParties”) against all claims, demands, suits, or actions by a third party(“Claims”), and shall release, indemnify, and hold harmless theIndemnified Parties from any and all liabilities, obligations, losses, damages,deficiencies, penalties, levies, fines, judgments, settlements, costs andexpenses, including reasonable attorney’s fees, resulting from a Claim (“Losses”)as arising out of or resulting from the (i) gross negligence of or willfulmisconduct or (ii) material breach by Indemnitor, its Affiliates, and theirrespective employees and agents, in a representation and warranty madehereunder or in the performance or nonperformance of the Indemnitor’sobligations under this Agreement. Theforegoing sentence will not apply where such Claims or Losses also arise out orresult from or to such as extent that they relate to the gross negligence,willful misconduct or material breach of another Indemnified Party. Losses mayinclude, but are not limited to, injury to or death of any person, or damage toor destruction of any property, real or personal.
7.2 AspireIQ IP InfringementIndemnification. Regarding anyClaim against Client Indemnified Parties arising out of the infringement of anythird party IP Rights (the “Infringing IP”), AspireIQ will, afterconsulting with Client: (i) defend Client Indemnified Parties against and tothe extent of such Infringing IP Claim or Losses, and, at AspireIQ’s option(ii) either: (a) procure the right for Client to continue to use the InfringingIP; (b) modify or replace the Infringing IP so that it is no longer infringing,provided however that such modification or replacement shall not degrade thefunctionality, operation or performance of the Services; or (c) if subsections(a) and (b) are deemed commercially unreasonable by AspireIQ, terminate thisAgreement and provide Client a pro rata refund of Service Fees paid. AspireIQ’sobligations in this Section 7.2 do not apply to the extent the Claim arises outof or to such extent as it relates to: (i) the failure of Client or any User toimplement the Services in accordance with the Documentation; (ii) breach ofthis Agreement by Client, a User or a Client Indemnified Party; or (iii) thenegligence, fraud or willful misconduct of Client, a User or a ClientIndemnified Party. This Section 7.2 states AspireIQ’s sole liability andClient’s sole remedy related to any Infringing IP as between AspireIQ andClient.
7.3 Client Product and Service Liability Indemnification. In addition to Client's general indemnification obligations underSection 7.1, Client agrees to defend AspireIQ, its Affiliates, and theirrespective officers, directors, employees, and agents, and any Creator engagedin connection with the Services (collectively, the "AspireIQIndemnitees"), against all Claims, and to release, indemnify, and holdharmless the AspireIQ Indemnitees from any and all resulting Losses, arisingout of or relating to (i) any actual or alleged defect in the design,manufacture, composition, labeling, packaging, or distribution of any productor service that is the subject of a Campaign under this Agreement; (ii) anyactual or alleged injury to any person or damage to any property caused by orattributable to any such product or service; (iii) any product recall, safetynotice, or regulatory action relating to any product or service promotedthrough the Services; or (iv) any claim that any product or service claim made inCampaign Materials, as approved or directed by Client, is false, misleading,deceptive, or insufficiently substantiated. The foregoing obligations shallapply regardless of whether such Claims or Losses arise from the actions ofClient, a Creator, or any third party, provided that such Claims or Lossesarise from or relate to Client's products or services rather than from anyindependent act or omission of AspireIQ or a Creator that falls outside thescope of Client's approvals and directions.
7.4 Indemnification Procedure. TheIndemnified Party will promptly give the Indemnitor notice of any Claim forwhich the Indemnified Party seeks indemnity under this Section 7. TheIndemnitor will have reasonable control over the defense and settlement of theClaim; provided however, that the Indemnitor will not enter into any Claimsettlement requiring payment of money or other adverse affirmative act (orinaction) by Indemnitee without Indemnitee’s consent. The Indemnified Party mayparticipate in the defense of any Claim through its appointed counsel at itsown expense.
8. LIABILITY.
8.1 LIMITATION OF LIABILITY. Except for each Party’s indemnity obligations under Section 7 or itsfraud or intentional misconduct, EACH PARTY’S LIABILITY FOR ALL CLAIMS ORLOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORTOR OTHERWISE, WILL NOT EXCEED THE GREATER OF 1) THE AMOUNT PAID BY CLIENT TOASPIREIQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THELIABILITY ARISES OR 2) THE AMOUNT PAYABLE BY CLIENT TO ASPIREIQ UNDER THISAGREEMENT DURING THE THEN CURRENT TWELVE (12) MONTH AGREEMENT TERM.
8.2 DAMAGES LIMITATION. Except for each Party’s fraudor intentional misconduct, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHERFOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OFANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, AND/OR GOODWILL,FOR ANY MATTER ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NONPERFORMANCEOF 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 SUCHDAMAGES.
8.3 SPECIAL LIABILITY CAP. NOTWITHSTANDING ANYTHING TO THECONTRARY IN THIS AGREEMENT, EACH OF THE PARTIES’ RESPECTIVE AGGREGATE MAXIMUMLIABILITY FOR ALL CLAIMS, LOSSES OR OTHER LIABILITY RELATED TO THE UNAUTHORIZEDUSE OF OR DISCLOSURE OF DATA UNDER THIS AGREEMENT (INCLUDING RELATED IN ANY WAY TO THE DATA PROCESSING ADDENDUM OR AND FROM ANYINDEMNITY OBLIGATION), SHALL NOT EXCEED $1,000,000.
9. CONFIDENTIALITY.
9.1 Confidential Information. Each Party (the “Receiving Party”) understands that the otherParty (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 DisclosingParty). The Receiving Party agrees: (i) to take reasonable precautions toprotect such Confidential Information, and (ii) not to use (except inperformance of the Services or as otherwise permitted herein) or divulge it toany third party, but excluding employees or authorized representatives who needto know such information for Receiving Party to perform its obligationshereunder and who are contractually bound to keep such informationconfidential. The foregoing will not apply to any information that theReceiving Party can document (a) is or becomes generally available to thepublic, or (b) was in its possession or known by it prior to receipt from theDisclosing Party, or (c) was rightfully disclosed to it without restriction bya third party, (d) was independently developed without use of any ConfidentialInformation of the Disclosing Party, or (e) is required to be disclosed by law(provided, however, where permitted, the Receiving Party shall provide priorwritten notice prior to any disclosure required by law and provide ReceivingParty the opportunity to seek a protective order or other appropriate remedy);provided that, where permitted, the Receiving Party shall provide writtennotice prior to any disclosure required by law sufficient for the ReceivingParty to seek a protective order or other appropriate remedy. The confidentiality obligations of each Partyand its employees will survive the expiration or termination of this Agreement.
9.2 Injunctive Relief. The Receiving Partyacknowledges that disclosure of any Confidential Information by it to a thirdparty will give rise to irreparable injury to the Disclosing Party or the ownerof such information, not adequately compensated by damages. Accordingly, the Disclosing Party may seekand obtain injunctive relief against the breach or threatened breach of theundertakings contained herein, in addition to any other legal remedies whichmay be available, without the requirement of posting bond or proving actualdamages. The Receiving Party further acknowledges and agrees that the covenantscontained herein are necessary for the protection of the Disclosing Party’slegitimate business interests and are reasonable in scope and content.
10. GENERAL PROVISIONS.
10.1 Successors and Assigns;No Third-Party Beneficiaries. This Agreement is legally binding upon andinures to the benefit of the Parties and their permitted successors andassigns. No third party is intended tobenefit from, nor may any third party seek to enforce, any of the terms of thisAgreement.
10.2 Publicity. Client agrees Aspire may useClient’s business name, logo, and may also create a testimonial, case study,podcast, and/or webinar about Client and post it on its website, marketingmaterials, social media, or any other media.
10.3 Relationship of theParties. AspireIQ will furnish all Services as anindependent contractor. Nothing contained in this Agreement will be deemed tocreate an association, partnership, joint venture, or relationship of principaland agent or master and servant between the Parties, or to grant either Partythe right or authority to assume, create or incur any liability or obligationof any kind, express or implied, against, in the name of, or on behalf of, theother Party.
10.4 Complete Agreement. This Agreement constitutes thefinal agreement between the Parties. It is the complete and exclusiveexpression of the Parties’ agreement on the specific matters addressed herein.All prior and contemporaneous negotiations and agreements between the Partieson the matters addressed in this Agreement are expressly merged into andsuperseded by this Agreement. In entering into this Agreement, neither Partyhas relied upon any statement, representation, warranty, or agreement by orfrom the other Party except for those expressly contained in thisAgreement. For the avoidance of doubt,this Agreement does not supersede nor encompass preexisting othercontemporaneous contracts which may exist between the Parties from time totime, unless specifically stated in writing otherwise.
10.5 Modification. The terms of this Agreement orany Order Form may not be modified or amended other than by a writing executedby both Parties by their duly authorized representatives.
10.6 Counterparts. This Agreement may be executedin one or more counterparts, each of which is deemed an original and all ofwhich, taken together, constitute a single enforceable agreement.
10.7 Notice. All notices required or permitted to be given by one Party to the otherunder this Agreement will be sufficient if in writing and sent by: (a) handdelivery, (b) certified mail, return receipt requested, or (c) overnightcarrier to the Parties at the addresses or fax numbers set forth below or tosuch other address or fax number as the Party to receive the notice hasdesignated by notice to the other Party.
10.8 Insurance. AspireIQ agrees to have in force for the Term of this Agreement thefollowing policies of insurance issued by insurers with an A.M. Best Rating ofA- VII or better: (i) General Liability with per occurrence and aggregatelimits of at least $1 million / $2 million; (ii) Workers’ Compensationinsurance at least to the applicable statutory limits; (iii) Errors &Omissions insurance with per claims made and aggregate limits at least $1million / $2 million; (iv) Cyberliability insurance with per claims made andaggregate limits of at least $1 million / $2 million.
10.9 Governing Law;Jurisdiction; Venue. This Agreementis governed by the laws of the State of California, without regard to itsprinciples of choice of law. Subject to the restrictions set out in Section10.13, a Party must bring and maintain any action exclusively in any state orfederal court located in San Francisco, California. Client and AspireIQ eachhereby expressly and irrevocably submit to the personal jurisdiction of suchcourts for the purposes of any such action and waive any claim of inconvenientforum. The United Nations Convention on Contracts for the International Sale ofGoods will not be applicable to the Parties’ rights or obligations under thisAgreement.
10.10 Assignment. No Party may assign any of its rights under this Agreement or delegateits performance under this Agreement without the prior written consent of theother Party, which will not be unreasonably withheld; except that either mayassign its rights and delegate its performance under this Agreement to (i) anentity that acquires all or substantially all of its assets, (ii) an Affiliate,or (iii) the successor in a merger, acquisition, or reorganization.
10.11 Savings Clause. If any provision of thisAgreement is determined to be invalid, illegal or unenforceable, the remainingprovisions of this Agreement remain in full force if the essential terms andconditions of this Agreement for each Party remain valid, binding andenforceable.
10.12 Waiver. Any delay by a Party inexercising its rights hereunder will not constitute a waiver of its rights orits entitlement to enforce any provision of this Agreement.
10.13 Force Majeure. In the event that either Partyis unable to perform any of its obligations under this Agreement as a result ofnatural disasters, actions or decrees of governmental bodies, work stoppages,national health crises, states of emergency, communication line failures notthe fault of the affected Party, or any other delay or failure which arisesfrom causes beyond a Party’s reasonable control (a “Force Majeure Event”),the Party whose performance has been so affected will immediately give noticeto the other Party and will do everything reasonably possible to resumeperformance. Upon receipt of such notice, those obligations that cannot beperformed through commercially reasonable diligence will be suspended. If the period of nonperformance exceedsthirty (30) days from the receipt of notice of the Force Majeure Event, theParty whose ability to perform has not been so affected may, by giving writtennotice, terminate this Agreement. To theextent that the impact of an event described herein only results in financialhardship to the effected Party, the relief and protections set forth hereinshall not apply.
10.14 Dispute Resolution. In the event of any Dispute theParties 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 thebreach thereof; but excluding a dispute, claim, question, or disagreementregarding Client’s non-payment of Fees more than 30 days past due.
10.14.1 Negotiations. The Partieswill have individuals with authority to resolve the Dispute, negotiate witheach other in good faith and, recognizing their mutual interests, attempt toreach a just and equitable solution satisfactory to both Parties. Theindividuals will meet in person or by video call one or more times asreasonably requested by either Party.
10.14.2 Mediation. If the Parties do not resolvethe 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 mediatethe Dispute in good faith according to JAMS Commercial Mediation Procedures ina location mutually agreeable to the Parties. The Parties will work in goodfaith with the mediator to attempt to complete the mediation within 90 days ofsuch notice. Fees for mediation shall beborne equally between the Parties. AnyParty who initiates a legal proceeding over a Dispute, whether in arbitrationotherwise, before participating in the required mediation process shall bedeemed to have irrevocably waived any right to be awarded or collect anyattorney’s fees in relation to such Dispute.
10.14.3 Arbitration.If the Parties do not resolve the Dispute through mediation, then, upon noticeby either Party to the other, the Dispute will be finally settled byarbitration administered by JAMS in accordance with the provisions of itsCommercial Arbitration Rules. The arbitration will be conducted on aconfidential basis before a single arbitrator mutually agreed to by theParties. The arbitrator will be experienced in contract and technology law. Thearbitrator must issue a written decision or award which provides an explanationfor all conclusions of law and fact. The arbitration will be conducted in alocation mutually agreeable to the Parties or selected by JAMS if no agreementis reached. An award of arbitration may be confirmed in a court of competentjurisdiction in accordance with Section 10.8 above. The arbitrator may awardany prevailing Party on a claim or defense some or all of its reasonablepre-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.
10.14.4 Exception.The provisions of this, Section 10.14, shall not apply to any action which isbrought and maintained within the jurisdiction of Small Claims. Further, in theevent that either Party may suffer irreparable harm absent the issuance ofimmediate injunctive relief, said Party shall be entitled to an initiate anaction for that purpose only, such that a motion seeking said relief may firstbe heard and decided by a court of competent jurisdiction. Upon the deciding ofany such motion, the other provisions of this Section 10.14, shall thencontrol, and a concerned court may order any further proceedings under thematter stayed or transferred as appropriate.
10.15 Agency Execution; Joint and Several Liability. Where this Agreement or any Order Form is executed by an entityacting as agent, intermediary, or representative on behalf of a disclosed orundisclosed principal (the "Agent"), the following termsapply:
(a) Authority. Agentrepresents and warrants that it has full legal authority to execute thisAgreement and each applicable Order Form on behalf of Client, to legally bindClient to all terms hereof, and to grant the rights and undertake theobligations set forth herein on Client's behalf. AspireIQ's willingness toenter into this Agreement is expressly conditioned on this representation.
(b) Joint and Several Liability. Agent and Client shall each be independently, jointly andseverally liable for all payment obligations arising under this Agreement andeach Order Form, including without limitation all Service Fees, Creator FeeBudgets, and any other amounts due and owing to AspireIQ. AspireIQ may pursueeither Agent or Client, or both simultaneously, for any amounts due without anyobligation to first seek payment from one before the other.
(c) Payment Not Contingent on Agency Funding. All fees and amounts due to AspireIQ under this Agreement areunconditional obligations of both Agent and Client, and shall not be subject toany condition of prior payment by Client to Agent or by any third party toAgent. The failure of Client to fund Agent, or Agent to remit funds receivedfrom Client to AspireIQ, shall not relieve either Agent or Client of anypayment obligation to AspireIQ.
(d) Agent Indemnity. Agentagrees to indemnify, defend, and hold harmless AspireIQ and its Affiliates,officers, directors, and employees from and against any Claims or Losses (asdefined in Section 7.1) arising out of or relating to (i) any breach of Agent'srepresentations and warranties set forth in Section 10.15(a), (ii) any disputebetween Agent and Client regarding authority, scope of agency, or allocation ofliability, or (iii) Agent's failure to remit to AspireIQ any amounts receivedfrom Client that are designated for or owed to AspireIQ.
(e) No Limitation of Client Obligations. Nothing in this Section 10.15 shall be construed to limit, reduce,or otherwise affect Client's independent obligations to AspireIQ under thisAgreement or any Order Form. The existence of an agency relationship betweenAgent and Client is solely a matter between Agent and Client and does not alterthe nature or extent of Client's direct obligations to AspireIQ.
10.16 Non-Circumvention; Creator Relationships.
(a) Acknowledgment of Proprietary Relationships. Client acknowledges that (i) AspireIQ develops and maintainsrelationships with Creators through substantial investment of time, resources,and proprietary methodology; (ii) the identity of, and information regarding,Creators introduced to or identified for Client through the Services — whetheror not ultimately engaged by Client — constitutes Confidential Information ofAspireIQ; and (iii) direct engagement by Client with such Creators, outside ofand without compensation to AspireIQ, would cause material harm to AspireIQ'sbusiness for which monetary damages may be an inadequate remedy.
(b) Non-Circumvention Obligation. During the Term of this Agreement and for a period of twelve (12)months following its expiration or termination for any reason (the "RestrictedPeriod"), Client shall not, directly or indirectly, without AspireIQ'sprior written consent:
(i) solicit, contact, or engage any Creator whowas (A) introduced to Client through the Services, (B) identified by AspireIQfor Client in connection with any Campaign or proposed Campaign, or (C) withwhom AspireIQ communicated on Client's behalf pursuant to this Agreement or anyOrder Form, in each case for the purpose of obtaining from such Creator anyservices of the type provided or contemplated under this Agreement, outside ofand without the involvement of AspireIQ; or
(ii) enter into any agreement or arrangementwith any such Creator for the provision of influencer marketing, contentcreation, or similar services that would otherwise be within the scope ofServices provided by AspireIQ under this Agreement, except through AspireIQ andpursuant to the terms hereof.
(c) Scope and Reasonableness. The Parties agree that the restrictions set forth in this Section10.16 are reasonable and necessary to protect AspireIQ's legitimate businessinterests, are proportionate to the protections afforded Client under thisAgreement, and shall be construed to provide the maximum protection to AspireIQconsistent with Applicable Law. If any restriction is found unenforceable in scopeor duration, it shall be modified to the minimum extent necessary to make itenforceable rather than voided.
(d) Remedies. Clientacknowledges that any breach or threatened breach of this Section 10.16 wouldcause irreparable harm to AspireIQ not adequately compensable in damages, andthat AspireIQ shall be entitled to seek equitable relief, including injunctiverelief, without the requirement of posting bond or proving actual damages, inaddition to all other remedies available at law or in equity. The prevailingParty in any action to enforce this Section 10.16 shall be entitled to recoverits reasonable attorneys' fees and costs.
(e) Exclusions. Therestrictions in Section 10.16(b) shall not apply to any Creator (i) with whomClient had a documented, pre-existing direct relationship prior to AspireIQ'sintroduction or identification of such Creator in connection with the Services,provided Client discloses such pre-existing relationship to AspireIQ in writingwithin thirty (30) days of the Effective Date of the applicable Order Form; or(ii) who independently contacts Client without any solicitation by Client orits agents, representatives, or Affiliates.
Schedule A
DEFINITIONS
“Active Project” means a Project that is not archived by Client.
“Affiliate” means an entity that directly or indirectlycontrols, is controlled by, or is under common control with a Party. “Control,”for purposes of this definition, means direct or indirect ownership or controlof 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 governmentalauthority with jurisdiction which are applicable to any Party under thisAgreement, including as set forth in and applicable to the Data ProcessingAddendum as attached hereto.
“Campaign” means a single advertising program focused on aspecific Client product or service, to be marketed or promoted online throughpaid, promoted, or organic postings to social media platforms or otherwisemanaged or serviced by AspireIQ pursuant to a controlling Order Form.
“Campaign Services” means the services or support listed pursuantto a controlling Order Form related to a Client Campaign.
“Commissionable Sales” means sales of Client products or servicesthat were initiated with or through a unique link or discount code generatedvia the Technology Services.
“Community” means Client’s selection of individuals or entitieswhich Client elects to manage or engage with through or with the support of theServices.
“Community Member” means an individual or entity included in aCommunity.
“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 whoengages with Client through the Services to provide Content or other servicesto Client.
“Creator Agreements” means an agreement for the provision ofContent creation services entered into by AspireIQ on behalf of Client with aCreator pursuant to the terms of this Agreement.
“Creator Fee” means an amountto be paid by Client to a Creator for Content or otherwise.
“Creator Fee Budget” means an amountof funds held by AspireIQ which the Parties anticipate will be necessary to payCreator Fees over a mutually agreed period of time.
“Documentation” means theinstructions, specifications, manuals, sample code, and other content availableon the AspireIQ website or otherwise made available by AspireIQ to Client withregard to the features, functions or use of the Services, consistent with theterms of this Agreement.
“Fee” means the fees payable byClient to AspireIQ as pursuant to a controlling Order Form, or as otherwiseprovided for in this Agreement and includes, but is not limited to, TechnologyServices Fees and Onboarding Fees.
“IP Rights” means allcopyrights, patents, trademarks, trade secrets, moral rights and otherintellectual property and proprietary rights.
“Project” means a workflow or processwith unique tasks or milestones created by Client within the TechnologyServices.
“Service Data” means data,information or material uploaded, routed or transmitted to Client or Users bythe Services or AspireIQ, including all IP Rights therein and any derivativeworks made therefrom (but excluding incorporated User Data, if any).
“Services” means theCampaign Services, Technology Services, Onboarding Services, and/or otherservices or support provided by AspireIQ to Client and Client’s Communitypursuant to a controlling Order Form.
“Order Form” means a written and signed order form for Servicesto be provided by AspireIQ under this Agreement.
“Taxes” means any sales, use,value-added, excise, or similar transaction taxes or duties, together with anypenalties, fines, charges or interest thereon, imposed by any domestic orforeign taxing authority on or with respect to the sale of any services or materialsin connection with the performance of this Agreement (and excludes any taxes onAspireIQ income).
“Technology Services” means alltechnology-related services and supporting platforms as identified pursuant toa controlling Order Form or any amendment thereto, or otherwise provided byAspireIQ to Client under this Agreement, including without limitation, allfeatures, functions, tools, and services, and all related data, statistics,analysis, information, tools, databases, documentation, system and networkinterfaces, internal network, cloud and disk storage, software applications,operating systems, engines, and internal communications backbone used toprovide 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 ofa click, a conversion, or an impression (where two hundred (200) impressionsconstitute one (1) instance), measured via pixels or other measurementprocesses employed by AspireIQ.
“User” and “Users” meansemployees, contractors, representatives, agents, or consultants of Client andits Affiliates who are designated by Client to use the Services under thisAgreement.
“User Data” means data,information or material uploaded, routed or transmitted by Client, ClientAffiliates or Users to the Services, including all IP Rights therein and anyderivative works made therefrom.
Schedule B
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“Addendum”), effective as of theEffective Date specified in the Related Agreement, is between AspireIQ andClient. Collectively, AspireIQ and Client are referred to as the “Parties”.
WHEREAS:
- AspireIQ offers certain Services to Client pursuant to the relatedSubscription Services Agreement (“Related Agreement”); and
- This Addendum sets out data protection, security and confidentialityrequirements with regard to the Processing of Personal Data collected,disclosed, stored, accessed or otherwise processed by AspireIQ for the purposeof providing the Services to Client;
NOW, THEREFORE, in considerationof the mutual covenants and agreements in this Addendum and for other good andvaluable consideration, the sufficiency of which is hereby acknowledged,AspireIQ and Client agree as follows:
1. Definitions.
When used in this Addendum, the following terms have the following meaning. Anycapitalized terms not defined in this Addendum have the meaning given in theRelated Agreement.
“Applicable Law” means all applicable federal, state, provincialand local laws, rules, regulations, directives and governmental requirementscurrently in effect and as they become effective relating in any way to theprivacy, confidentiality or security of Personal Data including withoutlimitation: California Consumer Privacy Act of 2018 (“CCPA”); theGramm-Leach-Bliley Act (“GLBA”), 15 U.S.C. §§ 6801-6827; the Fair CreditReporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., as amended by the Fair andAccurate Credit Transactions Act (“FACTA”); Health Insurance Portability andAccountability Act of 1996 (“HIPAA”) (codified as amended in scattered sectionsof 29 U.S.C. and 42 U.S.C.); the Controlling the Assault of Non-SolicitedPornography and Marketing Act (“CAN-SPAM”); information security breachnotification laws (such as Cal. Civ. Code §§ 1798.29, 1798.82 - 1798.84); lawsimposing minimum information security requirements (such as Cal. Civ. Code §1798.81.5, 201 Mass. Code Reg. 17.00 and 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 ProtectionAct; the Colorado Privacy Act, the Connecticut Data Privacy Act, and the UtahConsumer Privacy Act effective Dec. 31, 2023;
“Personal Data” means personally identifiable information, asdefined under Applicable Law, that is collected, disclosed, stored, accessed orotherwise processed by AspireIQ for the purpose of providing the Services toClient; and
“Processing” means any operation or set of operations which isperformed 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 orotherwise making available, alignment or combination, restriction, erasure ordestruction.
2. AspireIQ Responsibilities.
a. Processing. AspireIQ will process PersonalData to operate and manage a marketing and advertising platform and providerelated electronic commerce products and services to its users; to monitor,process and support transactions between users; to comply with legal or regulatoryobligations applicable to the processing and retention of payment data; and toimprove AspireIQ’s products and services. AspireIQ utilizes the Sub-processorslisted on Exhibit E (Material Company Subcontractors and Service Providers) toprovide the Services.
b. Data Security. Data Security. Aspire will implement and maintain the data securityprocesses and requirements set out in Sections 1-7 of the Data SecurityAnnexure of this Addendum, including with respect to the management andnotification of Data Security Incidents (as defined hereunder).
c. Deletionor return. At the choice of Client, AspireIQ will delete or return all PersonalData to Client after the end of the provision of the Services, and deleteexisting copies, unless further storage of the Personal Data is required orauthorized by Applicable Law.
d. Cooperationwith Client. AspireIQ will provide Client with commercially reasonableassistance and information to: (a) help Client honor Verifiable ConsumerRequests from individuals exercising their CCPA rights whose informationAspireIQ received as a result of AspireIQ’s performance under the Agreement (“CoveredIndividuals”), and (b) help Client respond to law enforcement or othergovernment agency inquiries related to Covered Individuals.
3. 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 theAspireIQ Services, Client will only use such Personal Data as permitted by thisAddendum or other agreements between AspireIQ and Client.
b. AspireIQ Account Security. Client is responsible for preventing thecompromise of its AspireIQ Account credentials, and for ensuring that itsAspireIQ Account is not used or modified without authorization.
c. Disclosure to Data Subjects. Client mustensure that the natural persons to which the Personal Data pertains (“DataSubjects”) are provided with appropriate information regarding the Processingof their Personal Data, including by means of offering a transparent and easilyaccessible public privacy notice.
d. Client Incident Notification. Except tothe extent necessary to comply with applicable legal, regulatory or lawenforcement requirements, Client must inform AspireIQ without unreasonabledelay, but in no event more than 48 hours, after it becomes aware of any datasecurity incidents (including a loss, theft, misuse, unauthorized access,disclosure, or acquisition, destruction or other compromise) that has occurredin its systems which affects Personal Data (“Client Data Incident”). Clientwill provide reasonable information and cooperation to AspireIQ so thatAspireIQ 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 ormitigate the effects of the Client Data Incident and will keep AspireIQinformed of all material developments in connection with the Client DataIncident.
4. Compliance with Applicable Law.
Each Party will performall of its obligations under Applicable Law, including data security andconfidentiality obligations. Each Party will hold in strict confidence any andall Personal Data processed under this Addendum.
5. Termination.
This Addendum will have the same duration asthe Related Agreement. The obligations of AspireIQ to implement appropriatesecurity measures with respect to the Personal Data will survive thetermination of this Addendum and will apply for so long as AspireIQ retainsPersonal Data.
6. Governing Law and Dispute Resolution.
The governing law and disputeresolution provisions of the Related Agreement will apply to this Addendum.
7. CCPA Certification.
AspireIQ certifies that it understands, and will comply with, therequirements of the CCPA as provided for in this Addendum.
Data Security Annexure
1. Programs and Policies.
a. Security Program. AspireIQ maintains and enforces a security program that addresses themanagement of security and the security controls employed by AspireIQ. Thesecurity program includes: (i) documented policies that AspireIQ formallyapproves, internally publishes, communicates to appropriate personnel andreviews at least annually; (ii) documented, clear assignment of responsibilityand authority for security program activities; (iii) policies covering, asapplicable, acceptable computer use, data classification, cryptographiccontrols, access control, removable media, and remote access; and (iv) regulartesting of the key controls, systems and procedures.
b. Privacy Program. AspireIQ maintains and enforces a privacy program and related policiesthat address how Personal Data is collected, used and shared.
2. Risk and Asset Management.
a. Risk Management. AspireIQ performs risk assessments and implements and maintains controlsfor risk identification, analysis, monitoring, reporting, and correctiveaction.
b. Asset Management.AspireIQ maintains and enforces an assetmanagement program that appropriately classifies and controls hardware andsoftware assets throughout their life cycle.
3. Worker Education.
a. Workers. All AspireIQ employees, agents, and contractors (collectively “Workers”)acknowledge their data security and privacy responsibilities under AspireIQ’spolicies.
b. Worker Controls. For Workers who Process Personal Data, AspireIQ: (i) implementspre-employment background checks and screening; (ii) conducts security andprivacy training; (iii) implements disciplinary processes for violations ofdata security or privacy requirements; and (iv) upon termination or applicablerole change, promptly removes or updates Worker access rights and requires thereturn or destruction of Personal Data.
4. Network and Operations Management.
a. Policies andProcedures. AspireIQ implements policies and proceduresfor network and operations management. Such policies and procedures address:hardening, change control, segregation of duties, separation of development andproduction environments, technical architecture management, network security,virus protection, media controls, protection of data in transit, dataintegrity, encryption, audit logs, and network segregation.
b. VulnerabilityAssessments. AspireIQ performs periodicvulnerability assessments and network penetration testing on systems andapplications that Process Personal Data.
5. Access Control.
a. Access Control. AspireIQ implements access controls designed to maintain theconfidentiality of Personal Data. Such controls include: (i) authorizationprocesses for physical, privileged, and logical access to facilities, systems,networks, wireless networks, operating systems, mobile devices, systemutilities, and other locations containing Personal Data; and (ii) grantingaccess only if it is logged, strictly controlled, and needed for a Worker orthird party to perform their job function.
b. Authentication. AspireIQ authenticates each Worker’s identity through appropriateauthentication credentials such as strong passwords, token devices, orbiometrics.
6. Data Security Incident Management and Notification.
a. IncidentManagement Program. AspireIQimplements an data security incident management program, compliant withApplicable Law, that addresses management of data security incidents includinga loss, theft, misuse, unauthorized access, disclosure, or acquisition,destruction or other compromise of Personal Data (“Data Security Incident”or “Incident”).
b. IncidentNotification. To the extent necessary tocomply with applicable legal, regulatory or law enforcement requirements,AspireIQ must inform Client without unreasonable delay, but in no event morethan 48 hours, after it becomes aware of any Incident that has occurred in itssystems which affects Personal Data.
c. Response. AspireIQ will partner with Client to respond to the Incident. Responsemay include: identifying key partners, investigating the Incident, providingregular updates, and determining notice obligations. Except as may be requiredby law, AspireIQ may not notify Client’s affected customers about an Incidentwithout first consulting Client.
7. Security Questionnaire. Uponwritten request, and no more frequently than annually, AspireIQ will complete awritten data security questionnaire of reasonable scope and duration regardingAspireIQ’s business practices and data technology environment in relation tothe Processing of User Data. AspireIQ’s responses to the security questionnairewill be AspireIQ confidential data.
Schedule C
SERVICE LEVEL ADDENDUM
1. Availability. AspireIQwill make the Services available 99.8% of the time. Availability will becalculated 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 madeavailable by AspireIQ.
- total means the total number ofminutes over the previous 90 days, on a rolling basis;
- downtime means minutes during whichthe Services are not available; and
- excluded means any downtime caused byplanned downtime of which AspireIQ provides the notice stated in Section 3 below, or force majeure events, which for purposes of this Exhibit meanscircumstances beyond AspireIQ’s reasonable control.
2. Planned Maintenance. AspireIQ will provide advance notice of any planned downtime, and willschedule 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 designedto minimize the impact on users. AspireIQ will use commercially reasonableefforts to provide at least 48 hours' advance notice.
3. Reporting. AspireIQ willprovide Client with access to statistics on Service availability over theprevious 90 days, on a rolling basis, upon request but no more than once per60-day period.
4. Support Contacts. AspireIQ Support can be contacted via email at support@AspireIQ.com. Support tickets are triaged based on the urgency of the inquiry. Ifreporting an urgent matter or critical issue, please make this clear in theemail to the Support team.
Schedule D
MATERIAL COMPANY SUBCONTRACTORS AND SERVICE PROVIDERS
Effective as of November 8, 2023
