Terms and Conditions:
You agree and acknowledge by using iAspire you are agreeing to pay for the work performed by iAspire. You acknowledge and agree that iAspire may initiate work on your behalf upon receipt of the first observation even if the iAspire form has not yet been submitted and you are responsible for payment of that work on a prorated basis despite any delay in submission of the completed iAspire form. For purposes of clarity, by submitting your first observation, you are accepting iAspire’s offer and agree to pay.
1. GENERAL. CUSTOMER shall pay ASPIRE2B, LLC the total price agreed upon. The person approving this Agreement for CUSTOMER has full authority to do so. All risk of loss passes to CUSTOMER upon delivery. CUSTOMER grants to ASPIRE2B, LLC a continuing security interest in the products and in the proceeds from any sale of the products to secure all amounts owed to ASPIRE2B, LLC. CUSTOMER is responsible for suitable equipment.
2. TRAINING AND SUPPORT SERVICES. The amount of training time quoted is an estimate based on CUSTOMER’s needs. The actual amount of training time may be adjusted during implementation project planning. If required, additional on-site training days will be invoiced at $695.00 per day, and additional online training will be invoiced at $100.00 per hour. Travel expenses related to on-site training/support (airfare, ground transportation, and hotel) are not included in the training fee and will be invoiced to the CUSTOMER separately within ten (10) days of receiving training. ASPIRE2B, LLC will use reasonable efforts to limit travel related expenses and shall, if practicable, consult with CUSTOMER prior to making travel arrangements. CUSTOMER agrees to pay such invoices within thirty (30) days of the invoice date. Onsite training time is calculated on an eight (8) hour work day multiplied by the number of ASPIRE2B, LLC trainers that are onsite. Any training days in excess of eight (8) hours shall be prorated on an hourly basis. If the CUSTOMER is unprepared for a scheduled on-site or online training session, or if staff is unavailable during scheduled on-site or online training sessions, the scheduled time for the ASPIRE2B, LLC trainer will be charged against the contracted onsite or online training time. On-site training cancelled with less than forty eight (48) hours notice will be charged against the contracted training time. ASPIRE2B, LLC will make every effort to book all air travel at least fourteen (14) days in advance in order to secure the best airfare. An estimate of travel expenses will be provided to the CUSTOMER prior to booking travel at the CUSTOMER’S request. In the event an ASPIRE2B, LLC trainer is required to travel on a non-business day to accommodate CUSTOMER’s requirement for the trainer to be on-site early in the morning on a Monday (or next business day following a holiday), CUSTOMER will be subject to a “Non-Business Day Travel Fee” of $300.00 per trainer. Additional online training sessions may be purchased at the rate of $100.00 per hour. Online training purchased pursuant to this subsection shall be solely dedicated to CUSTOMER.
3. LICENSED RIGHTS. Upon delivery to CUSTOMER of the Software and payment by CUSTOMER of the total system price plus taxes, ASPIRE2B, LLC hereby grants to CUSTOMER non-exclusive, non-transferable licenses to use the Application Software and System Software (jointly, “Software”), if applicable, pursuant to the terms and conditions hereof. System Software shall mean all computer programs whether in software or firmware and whether written in object, intermediate, or other code, for the general operation of a ASPIRE2B, LLC Computer, including operating system, run-time system, utilities, diagnostics, interpreter’s, and compilers. CUSTOMER acknowledges and agrees that all Software, together with the ideas, concepts, trade secrets, and copyrights contained therein are, and shall at all times remain, the exclusive, unique and valuable property of ASPIRE2B, LLC or its supplier. Neither CUSTOMER, nor its employees or agents, have acquired or shall attempt to acquire any proprietary interest in or other right to the Software other than as expressly granted herein. One year after Software delivery, CUSTOMER may renew the licenses and use the applicable Software for consecutive one-year terms only by paying ASPIRE2B, LLC in advance its then-current annual license fees or by paying for ASPIRE2B, LLC maintenance agreements which include the annual license fees. Any breach of this Agreement may result in deactivation of the Software.
4. NON-DISCLOSURE. CUSTOMER shall take all reasonable steps necessary to protect the trade secrets, copyrights, and other proprietary rights of ASPIRE2B, LLC (or any third party licensing the same to ASPIRE2B, LLC) in the Software, including the preservation of all proprietary notices supplied or requested by ASPIRE2B, LLC, and to ensure that the Software is not made available or disclosed by CUSTOMER to any persons other than to ASPIRE2B, LLC and to CUSTOMER’s employees solely in connection with CUSTOMER’s business. CUSTOMER agrees not to reverse-compile, reverse assemble or otherwise reverse engineer any of the Software. CUSTOMER agrees that all of its employees having access to the Software under this Agreement shall be informed by CUSTOMER of, and shall observe and perform the terms of, Section 2 and 3 herein.
CUSTOMER acknowledges and agrees that any violation of the provisions of Sections 2 and 3 herein will result in irreparable harm to ASPIRE2B, LLC and that money damages would provide an inadequate remedy. Accordingly, in addition to other rights and remedies available, ASPIRE2B, LLC shall be entitled to injunctive or other equitable relief to restrain any such violation and to such other and further relief as a court may deem proper under the circumstances.
5. CONFIDENTIALITY. Both parties acknowledges that by reason of its relationship with the other party hereunder, it may have access to certain information and materials relating to the other party’s business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties. Both parties agree that they will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by the other party. Both parties further agree that they will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential materials shall be returned to the other party or destroyed. The provisions of this section shall survive the termination of the agreement for any reason.
6. LIMITED SOFTWARE WARRANTY. For a period of thirty days after the delivery of the Software, ASPIRE2B, LLC warrants that it will resolve any material programming error or defect in the Software which causes it not to perform substantially in accordance with its then current published specifications, as modified by ASPIRE2B, LLC from time to time, and which can be replicated by ASPIRE2B, LLC on an ASPIRE2B, LLC computer. CUSTOMER must bring any such error or defect to the attention of ASPIRE2B, LLC in writing within such thirty-day period and designated it as a warranty claim or else this warranty shall not apply.
If within a reasonable period of time, ASPIRE2B, LLC is unable to resolve such a programming error or defect in the Software, and the continued existence of such error or defect materially impairs the operation of the ASPIRE2B, LLC Computer in the specific application for which it is intended, then ASPIRE2B, LLC’ sole obligation to the CUSTOMER is to refund the purchase price of the Software.
ASPIRE2B, LLC shall not be obligated to correct and does not warrant any Software if deletions or modifications are made, other than by ASPIRE2B, LLC, to the Software or the ASPIRE2B, LLC Computer utilizing such Software, or if any software or hardware which is not provided by ASPIRE2B, LLC interferes with the Software.
7. DISCLAIMER OF ALL OTHER WARRANTIES. THE WARRANTIES SET FORTH IN SECTION 6 ARE THE ONLY WARRANTIES MADE BY ASPIRE2B, LLC. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, SHALL APPLY. ASPIRE2B, LLC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. ASPIRE2B, LLC SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, PROFITS, DATA AND GOODWILL, EVEN IF ASPIRE2B, LLC HAS BEEN APPRISED OF THE LIKELIHOOD OF THE SAME. ASPIRE2B, LLC’s LIABILITY SHALL BE LIMITED TO THE REFUNDS SET FORTH IN SECTION 6 HEREIN, REGARDLESS OF WHETHER THE CLAIM OR FORM OF ACTION IS BASED ON CONTRACT, TORT OR OTHER THEORY. NO ACTION, ARBITRATION, OR OTHER PROCEEDING MAY BE BROUGHT AGAINST ASPIRE2B, LLC MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION OCCURES.
9. FORCE MAJEURE. ASPIRE2B, LLC shall not be liable for any failure or delay due to any cause beyond its reasonable control, including without limitation, fire, labor dispute or unrest, transportation delays, shortage of raw materials, energy or machinery, acts of suppliers, weather or lighting or other acts of God, power surges, and acts of the government or the judiciary.
10. SUCCESSORS AND ASSIGNS. The interests of CUSTOMER in this Agreement are personal and shall not be assigned, transferred, shared or divided in any manner by CUSTOMER without the prior written consent of ASPIRE2B, LLC. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. Any transfer of a controlling interest in CUSTOMER and any merger or consolidation of CUSTOMER shall be considered an assignment.
11. TERMINATION. The rights granted CUSTOMER pursuant to Section 2 may be terminated by ASPIRE2B, LLC for any breach of Section 2 or 3 upon written notice given to CUSTOMER. In addition, without prejudice to an other rights, either party may elect to terminate the rights and obligation contained in this Agreement including the license granted to CUSTOMER under Section 2 if after thirty days written notice, the other party has failed to perform any material obligation required to be performed by it under this Agreement or under any other agreement which has been or may in the future be entered into between CUSTOMER and ASPIRE2B, LLC, including without implied limitation, any maintenance agreement or agreement to pay for forms or supplies. Paragraphs 3,5,6,7,8 and 12 hereof shall survive any termination of this Agreement. In the event of any termination, CUSTOMER shall discontinue all use of and shall return to ASPIRE2B, LLC all Software furnished hereunder and certify to ASPIRE2B, LLC that it has done so.
12. ARBITRATION. Except for disputes arising under Sections 2 or 3 other than a failure to pay, any dispute between the parties relating to this Agreement or the products shall be submitted to arbitration under the Commercial Arbitration Rules of the American Arbitration Association for a hearing to take place at the AAA offices nearest CUSTOMER. A panel of three arbitrators shall preside over disputes where the amount in controversy exceeds $100,000. At least two weeks before the first hearing, the parties shall exchange the exhibits which each will present at the arbitration. The arbitrator(s) shall not award ASPIRE2B, LLC more than the total system price, or CUSTOMER more than a refund. The determination of the arbitrators shall be subject to judicial review as provided by law. Any award or determination rendered by the arbitrators may be enforced by any court of competent jurisdiction.
13. MISCELLANEOUS. It is the intent of the parties hereto that ASPIRE2B, LLC has been retained in the capacity of contractor only. Neither CUSTOMER nor ASPIRE2B, LLC considers its relationship to be a partnership, joint venture, employment, or any other related relationship. If any action, at law or in equity, including an action for declaratory relief, is brought to enforce or interpret this Agreement, ASPIRE2B, LLC is entitled to recover reasonable attorney fees’ from CUSTOMER if ASPIRE2B, LLC is the prevailing party, in addition to any other relief that may be awarded. The invalidity or unenforceability of any term, provision, clause or portion thereof of this Agreement shall in no way impair or affect the validity or enforceability of any other provision in this Agreement. Failure of either party at any time to require performance of any provision of this Agreement shall not limit the party’s right to enforce the provision, nor shall any waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a waiver of the provision itself for any other provision. This Agreement or any section thereof shall not be construed against any party due to the fact that said Agreement or any section thereof was drafted by said party. This Agreement shall be governed by the laws of the State of Indiana. Each party hereto irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction of the Hamilton County, Indiana and (b) waives any objection to venue and waives any right to and agrees not to plead or claim in any Indiana court that such litigation brought therein has been brought in any inconvenient forum or improper venue.
14. INDEMNIFICATION. CUSTOMER hereby agrees to indemnify and hold harmless ASPIRE2B, LLC and its owners, principals, agents, consultants, contractors, officers, and employees (the “Indemnified Parties”) from and against any losses, claims, damages, liabilities, court costs, and reasonable expenses (including reasonable attorney fees) in any threatened, pending or completed action, suit or proceeding to which the ASPIRE2B, LLC is a party or threatened to be made a party arising from or connection with performance of this Agreement caused by the CUSTOMER’s breach of this Agreement, negligence, gross negligence, fraud, willful or wanton misconduct or omission. CUSTOMER shall advance the Indemnified Parties the amount of reasonable expenses and fees incurred at the time they become due. CUSTOMER shall defend, indemnify and hold harmless the Indemnified parties from any loss, including without limitation, fines, penalties and corrective measures, reasonable attorney fees and costs, the Indemnified Parties may sustain by reason of failure CUSTOMER’s failure to comply with laws, rules, and regulations in connection with performance of this Agreement, including without limitation, any and all federal and
15. ENTIRE AGREEMENT. This Agreement and the ASPIRE2B, LLC/CUSTOMER shared responsibilities sheet, if any, contain the entire agreement between CUSTOMER and ASPIRE2B, LLC and supersede all prior and contemporaneous agreement, negotiations and understanding regarding this transaction. There are no other understanding, statements, promises or inducements, oral or otherwise, contrary or supplementary to the terms of this Agreement and the ASPIRE2B, LLC/CUSTOMER shared responsibilities sheet, if any.
16. THIRD PARTY SALES. These Terms and Conditions apply even if the App was sold to Customer by a third-party with authority to sell the App.