WHEREAS, Aspire North is in the business of licensing third party demographic and behavioral consumer data and developing products and services which facilitate demographic and behavioral target marketing in one or more forms of print and/or electronic media, including, but not limited to promotional efforts made via direct mail, the Internet, social media, email, digital media measurement services, mobile phones and billboards, as well as digital television and radio channels;
WHEREAS, Client and/or User is in the business of providing products and services to consumers and businesses; and
WHEREAS, the Parties desire for Aspire North to provide Client and/or User access to and use of certain Aspire North Data and other Aspire North services for Client and/or User’s business as set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Aspire North and Client and/or User and/or User hereby agree as follows:
(a) “Affiliate” shall mean any person or entity controlling, controlled by or under common control with a Party.
(b) “Agreement” has the meaning set forth above, and shall include any Schedule, Order, amendment, or supplement entered into between the Parties pursuant hereto.
(c) “Analytical Modeling Services” shall mean those services Aspire North provides to Client and/or User to develop one or more data analysis Models as specified in a Statement of Work.
(d) “Applicable Laws” shall mean all federal, state and local laws, rules, and regulations applicable to a Party’s performance of this Agreement or provision or use of the Data Services.
(e) “Campaign” shall mean conduct of marketing communications that Client and/or User facilitates.
(f) “Change Order” shall mean a written order signed by an authorized representative of each Party that specifies a change or addition to the Data Services, Fees, or timelines set forth in an Order or Statement of Work.
(g) “Claim” shall mean any third party claim, damage, loss, liability, cost or expense, including reasonable attorney’s fees.
(h) “Client Data” shall mean any prospect, consumer or business data that Client, or Client’s designee, supplies to Aspire North in the performance of this Agreement, but excluding any Aspire North Data.
(i) “User Data” shall mean any prospect, consumer or business data that User, or User's designee, supplies to Aspire North in the performance of this Agreement, but excluding any Aspire North Data.
(j) “Confidential Information” shall mean all information, and all tangible and intangible embodiments thereof, of any kind whatsoever, disclosed by a Party to the other Party pursuant to this Agreement that the disclosing Party protects as confidential or proprietary, including, but not limited to, technical, developmental, operating, financial, performance, network, marketing, cost, vendor, and consumer information, and all processes, models, trade secrets, lists, designs, business plans, strategies, reports, records and data using or disclosing such information. “Confidential Information” also shall include (i) that Confidential Information was made available and any of the terms, conditions or other facts related to this Agreement; and (ii) all notes, analyses, compilations, studies and other documents which contain, reflect or are based upon Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information which the other Party can establish by written documentation (a) to have been publicly known prior to disclosure of such information by the disclosing Party to the other Party; (b) to have become publicly known, without fault on the part of the other Party, subsequent to disclosure of such information by the disclosing Party to the other Party; (c) to have been received by the other Party at any time from a source, other than the disclosing Party, rightfully having possession of and the right to disclose such information; (d) to have been otherwise known by the other Party prior to disclosure of such information by the disclosing Party to the other Party; or (e) to have been independently developed by the Party. Aspire North’s Confidential Information shall be deemed to include the Aspire North Data, this Agreement, and the Fees. Client and/or User’s Confidential Information shall be deemed to include the Client and/or User Data.
(k) “Data Append Services” shall mean Aspire North appending Aspire North Data to a Client and/or User Data file pursuant to an Order.
(l) “Data Install Services” shall mean Aspire North’s delivery of a comprehensive dataset for such permitted uses as may be set forth in an Order.
(m) “Data Services” shall mean any of the Data Append Services, Data Matching Services, the List Rental Services, List Processing Services, development and delivery of Aspire North Reports, Data Install Services, Modeling or any other services mutually agreed upon in an Order and/or Schedule attached to this Agreement.
(n) “Data Matching Services” shall mean Aspire North comparing or matching one or more files provided to Aspire North which may include Aspire North utilizing Aspire North Data to process such files.
(o) “Aspire North Data” shall mean any consumer, business, or any other data that Aspire North provides to Client and/or User or Client and/or User’s designee in the provision of the Data Services, including, any Aspire North Report, unique identifiers or segmentation codes.
(p) “Aspire North Property” shall mean the Aspire North Data, materials, templates, technologies, processes, techniques, and methodologies used, conceived, provided or developed by Aspire North in connection with the Data Services or this Agreement, but expressly excluding any Client and/or User Data.
(q) “Aspire North Report” shall mean a tabulation of consumer, business or other information or data that Aspire North provides to Client and/or User in a printed or electronic file format in the form of a report.
(r) “Fees” shall mean the fees for the Data Services or other services agreed to by the Parties in a Schedule or Order.
(s) “Intellectual Property Rights” shall mean any and all copyrights, patents, trademarks, trade secrets, and any other intellectual property rights recognized under Applicable Laws, and any enhancements, modifications, updates, improvements thereto and derivative works thereof.
(t) “License Term” shall mean the duration of Client and/or User’s permitted use of Aspire North Data specified in the applicable Order.
(u) “List” shall mean Aspire North Data that Aspire North compiles based upon Client and/or User-designated selection criteria.
(v) “List Processing Services” shall mean Aspire North processing Client and/or User Data to incorporate certain Aspire North Data or delete certain Client and/or User Data records from a Client and/or User file, and may include data hygiene, address capture, postal, and national change of address services.
(w) “List Rental Services” shall mean Aspire North licensing one or more consumer or business marketing prospect Lists to Client and/or User.
(x) “Model” shall mean use of proprietary Aspire North algorithms to generate an output score reflecting certain targeted attributes.
(y) “Modeling” shall mean Aspire North application of proprietary Aspire North algorithms to generate an output score that reflects certain targeted attributes.
(z) “Order” shall mean a written order (e.g. Order, statement of work, work order or insertion order) for Data Services pursuant to this Agreement that is executed by the Parties.
(aa) “Schedule” shall mean a written schedule that contains supplemental terms and conditions to this Agreement that expressly references this Agreement.
(bb) “Security Breach” shall mean any actual unauthorized access to or use of any of the disclosing Party’s data provided to the recipient or recipient’s designee.
(cc) “Third Party” shall mean a third party acting on behalf of or at the direction of Client and/or User (including a third party processor) that accesses or uses the Aspire North Data in the provision of services to Client and/or User. Third party shall also include a third party providing any consumer, business, or any other data that Aspire North licenses, and/or provides to Client and/or User in the provision of the Data Services. For clarity, Client and/or User is not a “Third Party”.
2. Data Services.
(a) Aspire North shall provide to Client and/or User the Data Services as set forth and in accordance with each Order to this Agreement, and any Schedule incorporated in an Order. Each Order shall reference this Agreement and shall be deemed incorporated herein. Aspire North will not be obligated to initiate any Data Services until the Parties have executed an Order. In the event of a conflict among or between the terms of this Agreement, a Schedule, an Order or a Change Order, the following precedence shall apply: (i) Change Order; (ii) an Order; (iii) a Schedule; then (iv) the Agreement.
(b) Client and/or User shall identify to Aspire North in writing any Third Party to which Client and/or User desires to provide access to or use of the Aspire North Data to perform services on Client and/or User’s behalf (such as a data processor, data management platform, demand side platform, or data onboarding facilitator). Client and/or User shall remain fully responsible and liable for any use or distribution of Aspire North Data or Data Services by any Third Party, and for any Third Party performance on behalf of Client and/or User.
The term of this Agreement shall commence as of the Effective Date and shall continue for a period of one (1) year. The term shall extend for additional, successive one (1) year periods unless and until a Party provides written notice of termination of this Agreement to the other Party not less than ninety (90) days prior to the expiration of the then current Term. Notwithstanding any such termination, any Order and/or Schedule in effect as of such termination shall survive subject to the terms of this Agreement until the first to occur of: (i) expiration of any term stated in such Order and/or Schedule; (ii) Aspire North completion of the applicable Services specified in such Order and/or Schedule; or (iii) termination of such Order and/or Schedule in accordance with this Agreement or the terms set forth in such Order and/or Schedule.
If a Party is in material breach of this Agreement, a Schedule or an Order, the other Party may terminate the applicable Order and/or Schedule upon thirty (30) days written notice to the breaching Party, provided such breach is not cured within such thirty (30) day period. Notwithstanding the foregoing, an Order and/or Schedule may be terminated by Aspire North upon five (5) days prior written notice to Client and/or User if, in Aspire North’s reasonable good faith judgment, Client and/or User is using any Data Services or Aspire North Data provided in violation of this Agreement or the applicable Order and/or Schedule. In the event any Order and/or Schedule is terminated as a result of a breach, the non-breaching party shall, in addition to its rights of termination, be entitled to pursue all other remedies available at law or in equity. Termination of any Order and/or Schedule shall not relieve Client and/or User of its obligation to pay for any Data Services performed or provided by Aspire North pursuant to such Order and/or Schedule. In addition, either Party may terminate this Agreement, upon fifteen (15) days prior written notice to the other Party, if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5. Fees and Payment. Client and/or User shall pay Aspire North the Fees in accordance with this Agreement and in the amounts and manner specified in the applicable Order. Aspire North’s invoices will be deemed to be correct and acceptable to Client and/or User unless Client and/or User advises Aspire North of disputed items within ten (10) days following receipt. Client and/or User shall pay all invoices within thirty (30) days of receipt of invoice date. Invoices sent electronically shall be deemed received by Client and/or User on the date of transmission. If Client and/or User fails to pay any invoice in accordance with the foregoing terms, Client and/or User shall also pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by law. The prices and rates for the Data Services do not include any applicable federal, state, local, or foreign sales or use taxes, and Client and/or User will reimburse Aspire North for any taxes applicable to the Data Services, except for those taxes on Aspire North’s net income.
6. Data Use Restrictions.
6.1. Client and/or User Data License. Client and/or User hereby grants Aspire North a limited, non-exclusive, non-transferable, license to use the Client and/or User Data to perform and provide the Data Services, pursuant to this Agreement and in accordance with the applicable Schedule and/or Order and for no other purpose. Aspire North shall not disclose Client and/or User Data to any third party, except as set forth in an Order or Schedule, as directed by Client and/or User, or as necessary for Aspire North to provide the Data Services. Aspire North shall destroy or return Client and/or User Data promptly following completion of the applicable Data Services. Client and/or User shall use reasonable efforts to assure that the Client and/or User Data does not: (i) knowingly include any consumer data obtained from consumer(s) domiciled outside the United States; or (ii) contain names of individuals under the age of eighteen (18) years and shall be responsible for Client and/or User’s provision of any such Client and/or User Data to Aspire North and for Aspire North use of such Client and/or User Data in accordance with this Agreement.
6.2. Aspire North Data License.
(a) Aspire North hereby grants to Client and/or User a limited, nonexclusive, and nontransferable license to use the Data Services and the Aspire North Data during the License Term in accordance with this Agreement and the applicable Order. This license is personal to Client and/or User, and unless otherwise indicated, any Affiliates with Client and/or User shall not be deemed a licensee of the Data Services and the Aspire North Data. Client and/or User shall destroy the Aspire North Data within ninety (90) days following the expiration or termination of the License Term applicable to such Aspire North Data. In the event that Client and/or User fails to comply with the foregoing, Aspire North may charge Fees for Client and/or User’s continued use of the Aspire North Data at Aspire North’s then-standard rates, in addition to exercising any other remedies Aspire North may have available at law or in equity.
(b) If Client and/or User reasonably determines that the Data Services are not in accordance with the specifications set forth in the applicable Order, Client and/or User shall notify Aspire North in writing within twenty (20) days after receipt of such Data Services. Client and/or User’s failure to so notify Aspire North shall mean that Client and/or User accepts the Data Services “AS IS.” If Client and/or User so notifies Aspire North within twenty (20) days after receipt of the Data Services, then, unless Aspire North reasonably disputes Client and/or User’s claim, Aspire North shall, at its option, either re-perform such Data Services or issue Client and/or User a credit for the amount Client and/or User paid to Aspire North for the nonconforming Data Services.
(c) Client and/or User shall use the Aspire North Data solely in accordance with the applicable Order and/or Schedule and in strict accordance with all Applicable Laws, including privacy-related laws, and the following, as applicable: self-regulatory guidelines promulgated by industry associations and Client and/or User privacy policies. Aspire North privacy policies can be viewed here: https://www.aspire-north.com/data-services-and-website-privacy-policy.html
(c) Except as set forth in a Schedule or an Order, Client and/or User shall not (i) resell or distribute, license, or otherwise disclose Aspire North Data; (ii) copy, create derivative works or otherwise reproduce any Aspire North Data, except as necessary for backup or security purposes; (iii) attempt to discover or reverse engineer any confidential and proprietary criteria developed or used by Aspire North in the compilation of the Aspire North Data or the performance of the Data Services; (iv) merge or incorporate the Aspire North Data with any third party file without Aspire North’s prior written consent; (v) use Aspire North Data to enhance any third party file or list, or develop, publish or maintain any list, enhancement, directory, or other similar product; (vi) use Aspire North Data in any marketing communication that refers to selection criteria or presumed knowledge about the recipient; or (vii) permit access to Aspire North Data to individuals incarcerated in prisons or correctional institutions..
(d) Client and/or User acknowledges that Aspire North Data has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC Section 1681a. Client and/or User shall not use any Aspire North Data as a factor in establishing any consumer’s eligibility for (i) credit or insurance used primarily for personal, family or household purposes, (ii) employment purposes, or (iii) other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681b or any similar statute.
6.3. Change in Laws. Both parties agree to comply with all Applicable Laws applicable to each Party’s receipt and use of data provided to the other. Upon reasonable notice to Client and/or User, Aspire North may withdraw or decline to provide to Client and/or User any Aspire North Data or Data Services to comply with any requirements imposed by any third parties, Applicable Law, or industry guideline. In the event that there is any change in the Applicable Laws, which change (i) renders the subject matter of this Agreement illegal; (ii) causes a substantial reduction in either Party’s reasonably expected economic benefits under this Agreement; or (iii) substantially or commercially unreasonably increases the burden of either Party’s performance under this Agreement, then such Party may terminate this Agreement or applicable Order upon thirty (30) days prior written notice to the other Party, without any liability to the other Party, other than for amounts due to Aspire North for Data Services provided through the date of termination.
6.4. Confidentiality. The Parties shall from time to time disclose to each other Confidential Information in connection with the performance of this Agreement or the Data Services. A Party receiving Confidential Information pursuant to this Agreement (“Recipient”) shall treat all Confidential Information provided by the disclosing Party (“Discloser”) as proprietary and confidential to the Discloser and shall not disclose or permit disclosure of such Confidential Information to any third party, provided that the Recipient may disclose Confidential Information to its employees, officers, or directors, or legal or financial representatives on a need-to-know basis for performance of the Recipient’s obligations under this Agreement. The Recipient shall safeguard all Confidential Information of the Discloser with at least the same degree of care (and in no event less than reasonable care) as the Recipient uses to protect its own Confidential Information of like kind. The Recipient shall use the Discloser’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and applicable Order, and shall not use or disclose such Confidential Information for its own benefit or for the benefit of others, except as otherwise authorized by this Agreement or by the Discloser in writing.
6.5. Security Breach. Each Party will maintain reasonable security procedures and practices to protect each Party’s data provided to the other Party under this Agreement from unauthorized access, destruction, use, modification or disclosure. A Party experiencing a Security Breach (“Breached Party”) shall provide the other (“Non-Breached Party”) prompt written notice upon discovery or notification of any Security Breach and will promptly and at its own expense investigate and take all commercially reasonable steps to identify, prevent and mitigate the effects of any Security Breach. The Breached Party shall promptly provide to the Non-Breached Party a detailed description of the incident, the data accessed, the identity of affected consumers, and such other information as the Non-Breached Party may request concerning the Security Breach and conduct any commercially reasonable recovery necessary to remediate the impact and bear any reasonable cost the Non-Breached Party may incur as a result of a Security Breach, including any reasonable cost associated with the Non-Breached Party notifying any affected consumers.
6.6. Audit. To the extent permitted by applicable law, and subject to such confidentiality and standard security restrictions as the other party may from time to time reasonably require, each Party shall have the limited right to audit the other Party’s compliance with its obligations of: (i) Confidentiality and Data Use Restrictions (as set forth in Section 6); or (ii) Fees and Payment (Section 5) as set forth in this Agreement. On not less than fifteen (15) days prior written notice from the auditing Party, and during the other party’s regular business hours, the Party being audited shall allow the auditing Party at its own expense to (i) audit such of the Party’s records directly related to this Agreement, and (ii) examine such Party’s place(s) of business for the purpose of verifying its compliance with the confidentiality, payment, and permitted use obligations contained in this Agreement. The foregoing audit rights shall be exercisable not more than once annually, unless the auditing Party has a good faith reason to believe that its data is being used contrary to this Agreement. All information obtained during the audit, including the audit results, shall be subject to the confidentiality obligations contained in this Agreement, except as necessary to pursue any legal and/or equitable rights available to the auditing party in a court of competent jurisdiction.
6. 7. Copy Review. Upon Aspire North request, Client and/or User shall provide to Aspire North a copy of all components of any Client and/or User direct marketing offer using Aspire North Data for Aspire North review and approval. Aspire North may suspend or cancel applicable Data Services in the event Client and/or User fails to comply with this Section 6.7 or any such solicitation fails to comply with this Section 6.
6.8. Retained Rights.
(a) Client and/or User shall own, or have a right to use, all Intellectual Property Rights in and to the Client and/or User Data, and any enhancements, modifications, updates, improvements to, or derivative works of, the Client and/or User Data.
(b) Aspire North shall own and retain exclusively all Intellectual Property Rights in and to the Aspire North Property, and any enhancements, modifications, updates, improvements to, or derivative works of, the Aspire North Property.
7.1. Aspire North. Aspire North warrants to Client and/or User that (i) Aspire North has the full power and authority to enter into this Agreement and has obtained or will obtain and will continue to hold all necessary licenses, consents, permits and agreements required for Aspire North to comply with Aspire North’s obligations and license grants set forth in this Agreement and for the grant of rights to Client and/or User under this Agreement and any Orders and incorporated Schedules; (ii) Aspire North will use commercially reasonable efforts to provide the Data Services in a timely manner; (iii) Aspire North shall perform the Data Services in a good and workmanlike manner in all material respects in accordance with the specifications set forth in the applicable Order; and (iv) the Aspire North Data will be as complete, accurate, and current as such data can be in view of Aspire North’s customary method of compilation and acquisition of such data and the nature and accuracy of Aspire North’s sources for such data. THE WARRANTIES SET FORTH IN THIS SECTION 7.1 ARE THE ONLY WARRANTIES ASPIRE NORTH HAS GIVEN Client and/or User IN CONNECTION WITH THE DATA SERVICES OR THE ASPIRE NORTH PROPERTY. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENCY OF ANY ASPIRE NORTH PROPERTY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. ASPIRE NORTH DOES NOT WARRANT THAT THE DATA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
7.2. Client and/or User. Client and/or User warrants to Aspire North that (i) Client and/or User has the full power and authority to enter into this Agreement and has obtained or will obtain and will continue to hold all necessary licenses, consents, permits and agreements required for Client and/or User to comply with Client and/or User’s obligations and license grants and restrictions pursuant to this Agreement and any Orders and incorporated Schedules; (ii) Client and/or User’s provision of any Client and/or User Data and use of the Data Services and Aspire North Data shall comply with all Applicable Laws and applicable Client and/or User privacy policies; (iii) the Client and/or User Data was collected with the proper notice and opt-out opportunities provided in accordance with established industry practices and all Applicable Laws and that any opt-out records provided to Aspire North, if any, have been properly identified;
(iv) Client and/or User will use the Aspire North Data and Data Services solely in accordance with the terms of this Agreement and applicable Order and Schedule and for no other purpose whatsoever; and (v) Client and/or User will not provide the Aspire North Data or Data Services to any third parties, other than as permitted herein or in an applicable Order or Schedule THE WARRANTIES SET FORTH IN THIS SECTION 7.2 ARE THE ONLY WARRANTIES Client and/or User HAS GIVEN ASPIRE NORTH IN CONNECTION WITH THE DATA SERVICES OR THE Client and/or User PROPERTY. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENCY OF ANY Client and/or User PROPERTY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
8.1. Aspire North. Aspire North shall indemnify, defend and hold harmless Client and/or User and its officers, directors, and employees and Affiliates from and against any and all Claims to the extent caused by any (i) direct infringement of any United States patent, copyright, trade secret, or other intellectual property right resulting from the Aspire North Data or the Data Services; (ii) Aspire North violation of any Applicable Law in Aspire North’s performance of the Data Services; (iii) Aspire North breach of its confidentiality obligations under Section 6.4 or (iv) Security Breach resulting in the unauthorized disclosure of Client and/or User Data in Aspire North’s possession.
8.3. Procedures. A Party seeking indemnification for a Claim pursuant to this Agreement (“Indemnified Party”) shall provide written notice detailing the circumstances of the Claim to the Party responsible for indemnifying against the Claim (“Indemnifying Party”) promptly following the discovery of such Claim by the Indemnified Party. Failure to timely provide such notice shall not diminish the Indemnifying Party’s indemnification obligation except to the extent the Indemnifying Party’s ability to defend such Claim is materially prejudiced by such failure or delay. The Indemnified Party shall provide the Indemnifying Party with such information and cooperation as the Indemnifying Party may reasonably request.
9. Limitation of Liability.
9.1 EXCEPT WITH RESPECT TO A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6.4 (CONFIDENTIALITY), NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY OR ALL DAMAGES, LOSSES OR INJURIES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL IN ANY EVENT EXCEED THE AMOUNTS PAID AND PAYABLE BY Client and/or User TO ASPIRE NORTH PURSUANT TO THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ASSERTED BREACH OR EVENT.
(c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THE FOLLOWING TYPES OF FINANCIAL LOSS: DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR GOODWILL, LOST EARNINGS OR LOST PROFITS, OR THE FOLLOWING TYPES OF ANTICIPATED OR INCIDENTAL LOSSES: LOSS OF ANTICIPATED SAVINGS, INCREASE IN BAD DEBT, FAILURE TO REDUCE BAD DEBT; IN EACH CASE WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
10. Additional Provisions
10.1. Publicity. Neither Party may make any written or oral representation about the other Party in connection with any press, advertisements or publicity or activities concerning the Parties’ relationship arising out of this Agreement, without the prior written consent of the other Party.
10.2. Independent Contractors. The Parties to this Agreement are independent contractors and nothing herein shall be construed as creating an employment, Client and/or User, joint venture or partnership relationship between the Parties and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other in any Client and/or User or any other capacity or to make commitments of any kind for the account of or on behalf of the other Party.
10.3. Waiver. Either Party may waive compliance by the other Party with any covenants or conditions contained in this Agreement, Schedule or any Order, but only by written agreement signed by the Party waiving such compliance. No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
10.4. Successors and Assigns. This Agreement, as amended by its Schedules and/or Orders, will be binding upon and will inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole or in part by either Party without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may, without the prior written approval of the other, assign its rights and obligations hereunder, to any successor in ownership of substantially all of the assets of its business, provided that the successor expressly assumes in writing the performance of the terms and conditions of this Agreement.
10.5. Excusable Delays. Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events or conditions beyond that Party’s reasonable control including, without limitation, acts of God, any governmental body or failure of software or equipment of third parties.
10.6. Choice of Law; Venue. This Agreement (including all Orders and any Schedules) will be governed by the internal laws of the State of Minnesota. The Parties agree that any claims, legal proceeding or litigation arising in connection with this Agreement (including any Orders) will be brought solely in the
Hennepin County, Minnesota, and the Parties consent to the jurisdiction of such courts.
10.7. Notices. All notices, requests and other communications hereunder shall be in writing and shall be deemed delivered at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, sent via nationally recognized overnight courier service with delivery confirmed in writing. Notices to Aspire North and Client and/or User shall be sent to the addresses set forth on the last page to this Agreement, or to such other address as either Party shall designate in writing to the other from time to time.
10.8. Severability. In the event that any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability will not affect any other provision hereof, and this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein in regards to that particular jurisdiction.
10.9. Survival. The provisions of Sections 5, 6, 8, 9 and 10, shall survive termination of this Agreement for any reason.
10.10. Complete Agreement. This Agreement, as supplemented by any Schedule and Order, sets forth the entire understanding of Client and/or User and Aspire North with respect to the subject matter hereof and supersedes all prior letters of intent, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer employee, or representative of either Party relating thereto. This Agreement may only be amended in writing signed by authorized representatives of both Parties.