This Access and Services Agreement is made and entered into as of the Effective Date set forth above, by and between Aspire and Customer.‌

WHEREAS, Aspire owns and licenses the intellectual property that comprises Aspire’s software products as more particularly described and incorporated herein, (collectively, the “Software”) and has the right to grant its Customers access to the Software; and

WHEREAS, Aspire has entered into an arrangement with its designated hosting provider (its “hosting provider”) to provide its customers electronic access to the Software; and

WHEREAS, Customer desires such access to the Software; and‌

WHEREAS, Customer also desires for Aspire to perform certain services in connection with the Software.

NOW, THEREFORE, the parties agree as follows:

1. Software Access Grant.

1.1 General Grant. Subject to the terms and conditions of this Agreement, including payment of the applicable Fees (defined below), Aspire hereby grants to Customer and Customer’s affiliates for the Term (defined below) a non-exclusive, non-transferable, and limited-term right to electronically access and use the Software through various applicable software programs that may be used to access the Software solely: (i) for internal business purposes; (ii) in accordance with this Agreement and the user’s documentation applicable to the Software (the “Documentation”); and (iii) by Authorized Users as defined in Section 4. If any affiliate of Customer uses or accesses the Software or any other Protected Technology (defined below): (i) Customer hereby represents and warrants that all such access and usage by such affiliate is, or will have been prior to such use or access, authorized by Customer and that Customer shall be jointly and severally liable for any and all access and usage by such affiliate and all obligations and liabilities arising from such access and usage; (ii) The term “Customer” as used herein shall be automatically deemed to include such affiliate (along with any other affiliates who have accessed or used, or are then accessing or using, the Software); and (iii) Customer covenants and agrees on behalf of its affiliates that each such affiliate’s use and access to the Software and/or other Protected Technology shall be deemed to be (a) such affiliate’s agreement to be bound by this Agreement, and (b) such affiliate’s agreement to be jointly and severally liable for all of Customer’s obligations and liabilities contained herein and/or arising hereunder or otherwise with respect to any use or access to the Software.

1.2 Consultants. Customer may grant access to the Software to its subcontractors, consultants and agents (collectively, the “Consultants” and each a “Consultant”) provided that (i) Customer is, and shall be, fully responsible and liable for each and every one of its Consultants and each and every act or omission of each of its Consultants, and (ii) Customer shall indemnify, defend and hold Aspire and its Representatives (defined below) harmless from any and all claims, actions, or lawsuits arising out of or related to the acts or omissions of its Consultants.

1.3 No Other Licenses. This Agreement expressly does not include any right whatsoever to any other Aspire software product, which rights must be granted, if at all, under a separate agreement.

2. Hosting Arrangement. Customer hereby acknowledges and agrees that the Software is provided through a hosting arrangement with Aspire’s hosting provider. Customer further acknowledges and agrees that, through its access to and use of the Software, Customer may be granted access to, and may use, certain trade secret, intellectual property and proprietary information of the hosting provider, including, without limitation, the coding, skills, know-how, and intellectual property that forms a part of or is used in the hosting services and all modifications and enhancements made thereto during the Term of this Agreement (collectively, the “Hosting Technology”).‌

3. Restrictions and Limitations.

3.1 Protected Technology. Customer acknowledges that the Software and the Documentation, as well as the structure, organization and source code of the Software, and any Hosting Technology, constitute valuable trade secrets/intellectual property of Aspire and the other parties from whom Aspire licenses the same, or any portion thereof (“Aspire’s other licensors”) (all of which constitutes Aspire Property (as defined in Section 17.2 below); such Aspire Property and the Hosting Technology may be collectively referred to as the “Protected Technology”) and that Aspire, through its rights therein, has an interest in the Aspire Property.

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3.2 General Restrictions. Accordingly, except as expressely provided for in this Agreement, Customer shall not (and shall not cause any third party to)  (a) modify, adapt, alter, translate, or create derivative works from the Protected Technology; (b) merge the Protected Technology with any other software or proprietary information; (c) sublicense, lease, rent, loan, otherwise transfer or allow access to, or use of, the Protected Technology by any third party; (d) use any tool to enable features or functionalities that are otherwise disabled in the Protected Technology, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms for the Protected Technology; (e) otherwise access or use the Protected Technology or any information, files or data stored in the Protected Technology except as expressly permitted herein; (f) disclose any information concerning the features or performance of the Protected Technology to anyone other than Aspire or Customer’s affiliates and/or Consultants as needed for the same to access and/or use the Software; (g) access or attempt to access any of Aspire’s, its hosting provider’s or any other user’s files, information, systems, programs or data unless granted the right to use or access the same under this Agreement, (h) permit any third party to benefit from the use or functionality of the Protected Technology; (i) perform or attempt to perform any action(s) or task(s) that could or would (1) interfere with the proper operation or use of the Protected Technology or any other party’s access to, or use of, the Protected Technology; (2) prevent any party’s access to the Protected Technology; or (3) impose any unreasonable or disproportionately large computing load on the Software system’s infrastructure,(j) use or access the Protected Technology in violation of any applicable law or regulation; and (k) make any copies of Protected Technology for any reason whatsoever.

4. Account Information, Authorized Users and Audit and Other Access Rights.

4.1 Account Information. Customer hereby represents and warrants (i) that it has provided true, accurate, current and complete information about itself and its users as part of the registration and agreement process (the “Account Information”), and (ii) that Customer will maintain and will promptly update the Account Information to keep it accurate, current and complete. If Customer has provided, or provides, any Account Information that is inaccurate, not current or incomplete, or Aspire has reasonable grounds to suspect is inaccurate, not current or incomplete, Aspire may, in its sole discretion, suspend or terminate Customer’s account and/or this Agreement and suspend any and all current or future access to and use of the Software, the other Protected Technology, or any portion thereof upon thirty (30) days’ notice to Customer granting Customer thirty (30) days to bring Account Information into compliance.

4.2 Authorized Users. The Software may be used only by individual users that have been issued user identification and password credentials (each an “Authorized User”). Customer is solely responsible for (i) determining which users may have access to the Software and maintaining and updating user identification, permissions, and passwords for Authorized Users, and (ii) ensuring that all such users of any User Access Information (as defined below) assigned to Customer’s account are Authorized Users and that all such users comply with this Agreement.

4.3 User Access Information. Customer (and its Authorized Users (for whom Customer is responsible and liable)) is solely responsible for (i) maintaining the confidentiality and security of the user identification(s), password(s), access number(s), license key(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by it and/or its users to access the Software (collectively, “User Access Information”), and (ii) preventing unauthorized access to or use of the Software or the information, files or data that it stores or uses in or with the Software. Customer hereby represents and warrants that all parties accessing the Software through the User Access Information or any other authorized access mechanisms, if any, assigned to Customer’s account are, and will be, Authorized Users, and it agrees and covenants that it shall cause all such users to abide by the terms and conditions of this Agreement. Customer further agrees to immediately notify Aspire if it becomes aware of any loss, theft or unauthorized use of any User Access Information or any unauthorized access or attempted access of the Software or any other Protected Technology. Aspire reserves the right to (i) deny Customer and all of its Authorized Users access to the Software, any other Protected Technology or any part thereof and/or (ii) exercise its right to terminate this Agreement upon thirty (30) days’ notice to Customer by Aspire if any such loss, theft or unauthorized use has occurred or if Aspire reasonably believes that any such loss, theft or unauthorized use or access of User Access Information, the Software, or any other Protected Technology has occurred.

4.4 Audit Right. At any time during the Term, Aspire may, with verbal notice, access the Software and Customer’s data, files and other information for the purpose of auditing Customer’s Subscription Fees (defined below) and compliance with the terms of this Agreement. In addition, Aspire or its designated representative may, with reasonable prior notice to Customer, and for the purpose of auditing Customer’s compliance with the terms of this Agreement, visit each Customer facility or location where the Software is used or accessed and inspect and review any relevant records, including Customer tax returns, equipment, and all other information regarding the calculation of Fees hereunder, the Software or any other Protected Technology, and/or Customer’s access to and use of the Software or any other Protected Technology.

4.5 Access Rights. Aspire hereby reserves the right, for itself and its contractors, agents and/or representatives, including, without limitation, its hosting provider, to access the Software and Customer’s data, files and other information from time to time in order (i) to perform system administration, (ii) to provide maintenance and support services and (iii) to repair, maintain, upgrade, test and/or manage the Software and/or service environment generally.

5. Services.

5.1 Services. During the term of this Agreement, and subject to Customer’s payment of all Fees, Aspire shall provide the services as set forth herein (collectively, “Services”). ‌

5.2 Independent Contractor Status. Aspire’s (and its subcontractors’) relationship with Customer will be that of an independent contractor and not an employee or agent of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

5.3 Additional Fees. Customer shall reimburse as additional fees, the fees for any and all additional services as described in this Section 5, as may be applicable.‌

5.4 Subcontractors. Aspire may retain subcontractors in connection with  providing the Services set forth in this Agreement, and Customer agrees to cooperate with such subcontractors to the same extent that Customer would cooperate with Aspire. Aspire shall remain responsible for the Services performed by any of its subcontractors to the same extent as if such Services were being performed by Aspire itself.

5.5 Service Commitment. 

5.5.1 Service Availability. Other than during Scheduled Downtime periods described in Section 5.5.2 below, the Software will be available 24 hours per day, 7 days per week, 99% of the time in each month. This time period of Software availability is defined as the “Scheduled Uptime”.

5.5.2 Scheduled Downtime. Approximately once per month, there will be scheduled downtime periods lasting approximately four (4) hours each, to perform system maintenance, backup and upgrade functions for the Software (the “Scheduled Downtime”). Scheduled Downtime will not exceed a total of forty-eight (48) hours per calendar year and will be scheduled in advance during off-peak hours (based on Eastern Standard Time). Aspire will notify Customer’s Power User (as defined in the Services Schedule below) via email of any Scheduled Downtime at least twelve (12) hours in advance. The duration of the Scheduled Downtime is measured as the amount of elapsed time from when the Software is not available to Customer to perform operations to when the Software becomes available to Customer to perform operations. Daily system logs will be used to track Scheduled Downtime and any other Software outages.

5.5.3 Service Level Credits. If Aspire does not meet the Scheduled Uptime set out in Sections 5.5.1 and 5.5.2 above in any given month, upon request,Customer will be issued a “Service Level Credit” to be calculated in any given month as follows: Service Level Credit = ((Unscheduled Downtime for the month) / (Actual Uptime for the month)) x Total Monthly Access Fee. “Unscheduled Downtime” shall mean any time outside of the Scheduled Downtime when the Software is not available to perform operations, excluding any outages caused by (i) the Internet in general, (ii) Force Majeure Events, or (iii) the acts or omissions of Customer or its customers. “Actual Uptime” shall mean all time during which the Software is available for use by Customer.

6. Fees and Payment Terms.‌

6.1 Subscription Fees. Customer agrees to pay Aspire fees for accessing and using the Software and Services, maintenance, certain upgrades of the Software, daily offsite backups, hosting, phone and support via AspireCare™ as set forth in the Subscription Fees Schedule (the “Subscription Fees”). The Subscription Fees shall begin to accrue on the Effective Date of this Agreement.

6.2 Other Fees. If applicable, additional fees as set forth in the Services Schedule below shall be invoiced in a separate Services Agreement (the “Additional Fees”). Subscription Fees, collectively with the Additional Fees are defined as the “Fees”. All Fees paid hereunder are non-refundable and non-recoupable.

6.3 Invoices. Customer shall set up an automated clearing house (“ACH”) monthly draft from the Customer’s bank account for payment of the Fees. Customer agrees that no work can begin and Aspire will have no obligation to deliver the Software or Services until the ACH program is in place and payment is received by Aspire. All payments shall be in U.S. Dollars. All ACH withdrawals will take place on the 5th of the month for payment of the Fees for that same month. Aspire reserves the right to change the required payment method at any time upon notice to Customer, and in such an instance, Customer agrees to follow any written instructions provided by Aspire and to promptly provide any required account or other payment information to Aspire as may be requested.

6.4 Non-Payment OF ACH Invoicing. Customer agrees that non-payment of Fees in any one month constitutes a default under this Agreement. Upon such default, Aspire will notify verbally or in writing the Customer of this condition and Customer shall have five (5) days to cure the default by paying to Aspire all such amounts due. Should the Customer fail to make payment of all such amounts due within such five (5)day cure period, Aspire may, without prejudice to its right to terminate this Agreement pursuant to Section 9.2 below, suspend Customer’s access to the Software until the Customer pays all such amounts due and is in compliance with the terms of this Agreement.‌

7. Delivery and Acceptance. Upon execution of this Agreement, without limiting the warranties in Section 11 below, the Software will be deemed accepted upon Aspire granting, and the Customer or Customer’s Power User  accepting access to the Customer’s “production” system as described in the Deployment Timeline documents (see Service Schedule below).

8. Taxes. Any prices provided to Customer exclude all applicable sales, use and other taxes, and Customer will be responsible for payment of all such taxes (other than taxes based on Aspire’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees, including any training fees and/or renewal fees. Customer will make all payments to Aspire free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees to Aspire will be Customer’s sole responsibility, and Customer will provide Aspire with official receipts issued by the appropriate taxing authority, or such other evidence as Aspire may reasonably request, to establish that such taxes have been paid.‌

9. Term and Termination.

9.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in effect unless terminated in accordance with the terms of this Section  (the “Term”). ‌

9.2 Aspire’s Termination for Cause. This Agreement, and all rights of access and use granted to Customer hereunder, will terminate immediately upon written notice from Aspire if Customer (a) fails to comply with any material provision of this Agreement, unless Customer actually cures its failure to comply (i) within fifteen (15) days in the case of any failure to make payments or (ii) within thirty (30) days in the case of any other failure to comply.

9.3 Customer’s Termination for Cause. Customer shall have the right to terminate this Agreement by written notice to Aspire if Aspire materially breaches any of its obligations hereunder and does not cure such breach within sixty (60) days after receipt of written notice from Customer of such breach.‌

9.4 Termination For Convenience.  Either Party may terminate this Agreement without cause upon no less than ninety (90) days prior written notice given to the other Party. Notwithstanding the foregoing, Customer may not terminate this Agreement without cause until after the expiration of the third year of the Term.

9.5 Termination for Business Reasons. Aspire may terminate this Agreement without further liability in the event that Aspire’s costs to provide the Services increase substantially or it shall become difficult or impossible for Aspire to continue to provide the Services contemplated herein, for any reason, upon no less than ninety (90) days prior written notice given to Customer.

9.6 Mutual Termination. Either party may terminate this Agreement, effective upon written notice to the other party, if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

9.7 Effect of Termination. 

9.7.1 Payment of Remaining Fees. Upon termination of this Agreement for any reason, any amounts owed to Aspire will be immediately due and payable.

9.7.2 Cancellation Fees. If, at any time during the Term, Aspire terminates this Agreement for cause or Customer terminates this Agreement for any reason other than for cause, the Customer shall pay a separation fee equal to the Subscription Fees for the remainder of the then-current term. During the initial term detailed in the pricing section of this Agreement (the “Initial Period”), the cancellation fees shall be equal to the Fees that would accrue and otherwise become due and payable for the remainder of such Initial Period, had the Agreement not been terminated.  Thereafter, no cancellation fees will apply other than payment of Fees during the ninety (90) day notice period. 

9.7.3 Return of Confidential Information. In addition to the foregoing, upon termination or expiration of this Agreement, each of Customer and Aspire will, upon the written request of the other party, return Confidential Information (as defined in Section 18) in its possession in the format mutually agreed.

‌9.7.4 Suspension of Use. Immediately upon termination of this Agreement, Customer’s access to, and use of, the Software and Services shall terminate.

9.7.5 Destruction of Information. Aspire will, upon termination or expiration of this Agreement for any reason, and at Customer’s written request made prior to any such expiration or termination, use commercially reasonable efforts to provide an export of Customer’s data, files and other information stored in the Software and send such copy to Customer in a mutually agreeable format. These services shall be delivered at Aspire’s then current time and materials rate (provided upon request). Thereafter, all of Customer’s data, files and other information stored in the Software and/or other Protected Technology will be unavailable and deleted, and none of Aspire, its hosting partner nor any of their respective Representatives will have any further obligation or liability regarding such data, files and/or information.

9.7.6 Survival. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, Sections 3, 9, and 11 through 32. 

10. Customer’s Obligations.

10.1 Service Obligations. Customer understands that successful completion of Aspire’s obligations under this Agreement is expressly conditioned upon Customer’s timely performance of its obligations set forth herein, in accordance with the timelines set forth, including, but not limited to, Customer’s provision of a computing and network environment meeting the specifications for the Software. Customer agrees and understands that any delay not caused by Aspire (i) will relieve Aspire of its obligations to meet timelines to the extent of such delay and (ii) may result in increased Fees payable to Aspire to cover costs arising from such delay.‌

11. Limited Warranties.

11.1 Performance. Aspire does not warrant that the Customer’s use of the Software will be error-free or uninterrupted except to the extent expressly provided in and set forth in Section 5.5. Aspire will, at its own expense and as its sole obligation and as Customer’s exclusive remedy for any breach of this warranty (except for as expressly provided for in Section 5.5), use commercially reasonable efforts to correct any reproducible defect or limitation in the Software that causes the Software to fail to perform in accordance with Section 5.5 when Customer uses or operates the Software in accordance with the Software’s user manual, which is reported to Aspire by Customer in writing.

11.2 Viruses. The term “Virus” means any malicious computer code intentionally designed to disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system without the user’s consent. Customer acknowledges that standard virus scanning programs can detect not all Viruses and, therefore, Aspire does not represent or warrant that the Software or service environment will be free of Viruses. Aspire’s sole obligation if a Virus is detected in the Software or service environment will be to use commercially reasonable efforts to quarantine and/or remove any such Virus, which is reported to Aspire by Customer in writing. 

11.3 Back-Up. Aspire will execute daily backups to Geo-redundant sites and use commercially reasonable efforts to backup Customer data stored in the Software.‌

12. Disclaimer of Other Warranties. THE EXPRESS LIMITED WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT, AND TO THE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASPIRE, ITS AFFILIATES, ITS LICENSORS, HOSTING PROVIDER, DISTRIBUTORS, DEALERS, SUPPLIERS, EMPLOYEES, DIRECTORS, OFFICERS AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL SUCH GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SOFTWARE, THE OTHER PROTECTED TECHNOLOGY AND/OR THE SERVICES. ASPIRE DOES NOT WARRANT OR GUARANTEE CONTINUOUS OR UNINTERRUPTED USE OF, OR ACCESS TO, THE SOFTWARE OR THAT THE SOFTWARE WILL BE FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR ANY OTHER PROGRAM LIMITATIONS.NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASPIRE OR ANY OF ITS REPRESENTATIVES SHALL INCREASE THE SCOPE OF ANY WARRANTIES OR CREATE ANY NEW WARRANTIES.

13. Privacy Laws.

13.1 To the extent that Aspire processes any personal data on the Customer’s  behalf and in accordance with its instructions as part of or in connection with the performance of the Services, the Parties agree that the Data Protection Addendum set forth here shall apply and shall be deemed as an integrated part of this Agreement. 

13.2 ASPIRE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S ACCESS TO, OR USE OF, THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT NEITHER THE SOFTWARE NOR ASPIRE WILL ASSIST WITH OR ENSURE COMPLIANCE ANY APPLICABLE PRIVACY LAWS, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND FOR USING THE SOFTWARE RELATED SERVICES AND CONTENT IN A MANNER CONSISTENT WITH ALL APPLICABLE PRIVACY LAWS.

14. Infringement Indemnity. Aspire will defend, at its own expense, any action against Customer brought by a third party to the extent that the action is based upon a claim that the Software infringes any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secrets Act, and Aspire will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim. The foregoing obligations are conditioned on Customer notifying Aspire promptly in writing of such action, Customer giving Aspire, or its affiliate, as designated by Aspire, sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Aspire’s request and expense, assisting in such defense. If the Software becomes, or in Aspire’s opinion is likely to become, the subject of an infringement claim, Aspire may, at its option and expense, either (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) accept return of the applicable Software associated with such claim and give Customer a refund of the applicable pre-paid Fees paid by Customer prorated to reflect the number of months remaining in the then-current term. Notwithstanding the foregoing, Aspire will have no obligation under this Section 14 or otherwise with respect to any infringement claim based upon (i) any use of the Software not in accordance with this Agreement or for purposes not intended by Aspire, (ii) any use of the Software in combination with other products, equipment, or software not supplied by Aspire, (iii) any use of any release of the Software other than the most current release made available to Customer, or (iv) any modification of the Software by any person other than Aspire or its authorized agents or subcontractors. This Section 14 states Aspire’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.

15. Limitation of Liability. IN NO EVENT WILL ASPIRE OR ANY OF ITS REPRESENTATIVES BE LIABLE TO CUSTOMER FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR ANY (OTHER) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY ACCESS TO OR USE OF OR ANY INABILITY TO ACCESS OR USE THE SOFTWARE, OR THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ASPIRE OR ONE OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NEITHER ASPIRE NOR ANY OF ITS REPRESENTATIVES SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LIABILITIES OR DAMAGES CAUSED BY, CONNECTED WITH OR RELATED TO ANY ACCESS TO, OR USE OF, CUSTOMER’S USER IDENTIFICATION(S), PASSWORD(S), OTHER USER ACCESS INFORMATION OR OTHER ACCESS MECHANISM BY ANY UNAUTHORIZED PERSON REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL ASPIRE’S MAXIMUM AGGREGATE LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, AND/OR WILLFUL MISCONDUCT) OR OTHERWISE, EXCEED THE PAYMENTS RECEIVED BY ASPIRE FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY IN ADDITION TO ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS FOR ASPIRE ALLOWING CUSTOMER ACCESS TO THE SOFTWARE AND FOR PROVIDING THE SERVICES AND ARE A PART OF THE BASIS FOR THE BARGAIN BETWEEN CUSTOMER AND ASPIRE. ASPIRE WOULD NOT HAVE PROVIDED CUSTOMER THE RIGHT TO ACCESS AND/OR USE THE SOFTWARE AND WOULD NOT HAVE PERFORMED THE SERVICES WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

16. Indemnification. Customer hereby agrees to indemnify, defend and hold Aspire and its Representatives harmless from any and all liabilities, claims, losses, damages, costs and expenses, including, without limitation, reasonable outside attorneys’ fees and court costs, arising from, connected with, or related to (i) Customer’s or any of its Authorized Users’ (including, but not limited to, its Consultants’) access, use or misuse of the Software or the Protected Technology, or any attempt to doing any of the foregoing, (ii) any unauthorized access or use of the Protected Technology through any of user identification(s), passwords or other User Access Information assigned to Customer’s account, (iii) breach or violation by Customer (or any of its Authorized Users, affiliates, or Consultants, all of which are deemed Customer’s breaches) of (a) any provision(s) of this Agreement, (b) any representation, warranty, or agreement referenced in this Agreement, or (c) any applicable law or regulation; (iv) Customer’s or any Authorized User’s violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with your use of the Protected Technology or any data, materials or information you provide in the Software; or (v) any dispute or issue between Customer and any third party.

17. Proprietary Rights and Aspire Property.

17.1 Software. The Software, the Documentation, and all modifications or derivative works of the foregoing, including all worldwide copyrights, trade secrets, patents, patent applications, and other proprietary rights therein are the exclusive property of Aspire or Aspire’s other licensors. Customer hereby acknowledges that nothing in this Agreement shall give Customer any right, title, or interest in or to the Protected Technology, or any intellectual property that forms a part thereof, except as expressly provided herein. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) on any Protected Technology, Documentation, or on any data output or report generated by the Software.

17.2 Aspire Property. “Aspire Property” means any work, ideas, inventions, discoveries, software, scripts, processes and improvements, computer processes, specifications, operating instructions, notes, training material and any other documentation (whether or not patentable) owned by, or developed by, Aspire, Aspire’s other licensors, or their affiliates, including enhancements, improvements or modifications thereto generated during the Term, whether or not during the course of providing any Services, used to satisfy Aspire’s obligations under this Agreement.

17.3 Customer Data. “Customer Data” means electronic data or information or business data submitted to the Software by Customer or any Authorized User or directly created by any such person for Customer’s use in connection with the use of the Software. Notwithstanding the foregoing, Customer Data does not include non-identifiable aggregated data compiled by Aspire in connection with Customer’s (including its Authorized Users’) use of the Software. Customer may upload Customer Data to the Service and link other services to the Service to integrate Customer Data from those other services. In addition, Aspire may collect registration and other information statistical and usage data about Customers’ and Authorized Users’ use of the Software, and may use such data for any purpose in accordance with applicable law and our Privacy Policy. Customer hereby grants Aspire and its affiliates a non-exclusive, non-sublicensable (except to service providers and subcontractors providing services to Aspire), transferable, worldwide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, transmit, distribute and otherwise exploit all such information: (a) internally in any way subject to Aspire’s obligation of non-disclosure in Section 18 below, and compliance with applicable laws such as privacy laws; and (b) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with our Privacy Policy. Customer may only upload text, photographs, videos, or other audiovisual or informational content (collectively, “Content”) to the Software if Customer owns the rights to that Content, or if another rights holder has given Customer permission. ‌

18. Confidentiality. In connection with Aspire’s provision of the Software or Services to Customer, each party, including Aspire’s subcontractors, may have access to certain valuable materials and information and data that the other party and its contractors and affiliates consider to be confidential and proprietary. This may include, without limitation, information relating to the disclosing party, its contractors’ and its affiliates’ research data, business and marketing strategies and plans. During the term of this Agreement and thereafter for a period of five (5) years (including following any termination or expiration), the receiving party agrees to retain in confidence and to refrain from disclosing and/or using for its benefit or the benefit of any third party, any or all confidential and/or proprietary information and/or data disclosed to it as a result of its activities under this Agreement and/or, (i) as to Aspire, obtained by Aspire, its agents or subcontractors while visiting Customer’s facilities or (ii) as to Customer, obtained through its access to or use of the Software and/or other Protected Technology, specifically, including, the Aspire Property, the Hosting Technology and any and all other confidential information of Aspire’s hosting provider (“Confidential Information”). The restrictions of this Section 18 shall not apply to information: (i) which is or becomes public knowledge (through no fault of the receiving party or its representatives); or (ii) which is lawfully made available to the receiving party by an independent third party (and such lawful availability can be properly demonstrated by the receiving party); (iii) which is already in the receiving party’s possession at the time of initial receipt from the disclosing party (and such prior possession can be properly demonstrated by the receiving party); (iv) which is independently developed by the receiving party or its representatives (and such independent development can be properly demonstrated by the receiving party); or (v) which is required by law, regulation, rule, act or order of any governmental authority or agency to be disclosed by the receiving party, provided however, that the receiving party, except where prohibited by law or legal order, gives the disclosing party sufficient advance written notice to permit it to seek a protective order or other similar order with respect to such information and thereafter the receiving party discloses only the minimum Confidential Information required to be disclosed in order to comply, whether or not a protective order or other similar order is obtained by the disclosing party.

19. Publicity. Notwithstanding Section 18 of this Agreement, Customer agrees that Aspire may identify Customer as a user of the Software in presentations to other customers, potential customers, investors, analysts, and other similar parties – with the Customer’s verbal or written permission. Customer agrees that Aspire may also utilize Customer’s data for purposes of producing and presenting benchmark reports and similar data analysis for its business purposes, provided such data is not identified as belonging to Customer. In addition, Aspire and Customer will cooperate with each other with respect to the drafting, approval and issuance of a press release or other public announcement related to Customer’s use of the Software. However, neither party will release any information about the terms of this Agreement without the other party’s prior written consent except that either party may make any disclosures concerning this Agreement or its business relationship with the other party that are, in the opinion in its counsel, required under any laws or regulations to which such party may be subject.‌

20. Exclusivity. Customer hereby acknowledges that the Software is invoiced to Customer based on Customer’s monthly revenues. As such, Customer hereby agrees that during the Term, except with the prior written consent of Aspire, Customer shall use Aspire as its exclusive landscape business software provider in order to render proper and accurate invoicing.

21. Assignment. Customer may not assign this Agreement or any right, duty, or obligation under this Agreement, without Aspire’s prior written consent, including, for the avoidance of doubt, to any acquirer of Customer’s business. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. Aspire may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without Customer’s consent. 

22. Consenting to Do Business Electronically. The decision whether to do business and to access the Software electronically is Customer’s, and Customer should consider whether it has the required hardware and software capabilities to use the Software as such requirements have been provided to it by Aspire and whether Customer wishes to take, and assume, the inherent risks associated therewith. Customer’s consent to do business electronically and Aspire’s agreement to do so covers all transactions Customer conducts with Aspire with respect to the Software and/or Services during the Term. Customer consents to do business with Aspire and access the Software electronically by entering into this Agreement.

23. U.S. Government End Users. The Software and the Documentation constitute a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.

24. Export Regulations. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.  Specifically, Customer covenants that it shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Aspire under this Agreement to any destination, entity, or person or for any use prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to indemnify, to the fullest extent permitted by law, Aspire from and against any fines or penalties that may arise as a result of Customer’s breach of this provision.  

25. Force Majeure. A “Force Majeure Event” means any unforeseeable event beyond a party’s reasonable control, including, but not limited to, acts of war, acts of God, fire, floods, earthquake, pandemic or epidemic, flood or extreme weather conditions, embargo, riot, strikes, sabotage, terrorist acts, or omissions or delays in acting by any governmental authority. Any delay in the performance of any duties or obligations of either party (other than the obligation to pay money) will not be considered a breach of this Agreement if such delay is caused by any Force Majeure Event; provided that such party uses reasonable efforts under the circumstances to notify the other party of the circumstances causing the delay and resumes performance as soon as possible.

26. Compliance with Laws and Other Agreements. Customer hereby warrants and represents to Aspire that: (i) the execution, delivery, or performance by Customer of this Agreement will not contravene any law, regulation, or legal requirement applicable to or binding on Customer, including but not limited to, all export and import control laws and regulations and privacy laws and regulations during use of its Software, or result in a breach of, or constitute a default under, or contravene any provisions of, any agreement or instrument to which it is a party or by which it is bound.

27. Injunctive Relief. The parties agree that a breach of Sections 1, 3, 17 or 18, or of the scope of any of the rights or licenses granted hereunder, may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and such party is therefore entitled to seek injunctive relief as well as such other relief as may be appropriate.

28. Governing Law. All questions concerning the validity, operation, interpretation, and construction of this Agreement will be governed by and determined in accordance with the laws of the State of Delaware, excluding any choice of law rules, which may direct the application of the laws of another jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

29. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS CUSTOMER’S RIGHTS.

1. Agreement to Arbitrate. This Section 30 is referred to as the “Arbitration Agreement.”  Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and Aspire, whether arising out of or relating to the Agreement, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer claims qualify. Customer agrees that, by agreeing to this Arbitration Agreement, Customer and Aspire are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement.  Each party’s rights will be determined by a neutral arbitrator, not a judge or jury.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and Aspire agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and Aspire agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding.  Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). 

3. Pre-Arbitration Dispute Resolution. Aspire is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing your designated Aspire customer support team.  If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice to Aspire should be sent to Aspire, LLC, 390 S Woods Mill Road, Suite 200 Chesterfield, MO 63017, ATTN: Legal, with a copy (which shall not constitute notice) to ServiceTitan, Inc., 801 N. Brand Blvd., Suite 700, Glendale, CA 91203, ATTN: Legal.  The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought.  If Aspire and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Aspire or Customer may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Aspire or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Aspire is entitled.

4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. Any arbitration hearing will take place at a location to be agreed upon in Washington D.C.; if the parties are unable to agree on a location within Washington D.C., the determination shall be made by AAA. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement.  The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.  If Customer’s claim is for $10,000 or less, Aspire agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules.  If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  Any payment of attorneys’ fees will be governed by the AAA Rules.

6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (2) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court or the arbitrator decides that any of the provisions of clause (2) are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void.  The remainder of this Agreement will continue to apply.

30. Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision shall be deemed not to be a part of this Agreement, while the remainder of this Agreement shall remain in full force and effect. However, if in Aspire’s opinion deletion of any provisions of this Agreement by operation of this paragraph unreasonably compromises the rights or liabilities of Aspire or any of Aspire’s other licensors, Aspire reserves the right to terminate this Agreement and provide a pro-rata refund of any pre-paid fee(s) to Customer as Customer’s sole and exclusive remedy and Aspire’s sole liability.

31. Entire Agreement; Modifications. This Agreement, including the Schedules, constitutes the entire agreement of the parties with respect to the subject matter hereof and (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over the terms of any quote, purchase order, acknowledgment, or like document issued by Customer, all of which are void and shall be of no force or effect. This Agreement may be amended only in writing executed by a duly authorized representative of each party.

32. Counterparts. This Agreement may be executed in any number of counterparts, all of which together will constitute one and the same instrument. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by email, facsimile machine or Telecopier is to be treated as an original document. The signature of any party thereon, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature or an original document