Terms of Service

EFFECTIVE DATE: February 1, 2024

These Terms of Service govern any and all software and services (“Services”) provided or sold by Aspen94 Consulting Group, Inc. d/b/a Aspen94 CRM, a Michigan corporation (“Aspen94”), to you (“Client”). These Terms of Service are expressly incorporated into, and made a part of, any and all purchase orders, agreements, and contracts entered into between Client and Aspen94 (together with these Terms of Service, “Agreement”).

AUTOMATIC RENEWAL AND TERMINATION

If Client has purchased a subscription for any Service, the subscription will automatically renew at the end of its term or renewal term for the succeeding 12 months with respect to such Service, and payment for each renewal term will be due at least 3 business days before the renewal date at the current rates for the Service in effect as of the date of the renewal. Client authorizes Aspen94 to retain any payment method used by Client for the Services, including credit card information, and to automatically charge such payment method up to 3 business days before any automatic renewal. If no payment method is retained by Aspen94, or if Client otherwise fails to make payment for any renewal term, Aspen94 may immediately cancel any of Client’s subscriptions without any liability to Aspen94, including any liability for any loss of access to data, loss of access to systems, loss of promotional rates, and loss of legacy benefits. If Client desires to make any changes to the quantity or type of Service purchased by Client before any automatic renewal, Client must notify Aspen94 of the requested change in writing at least 14 days before the automatic renewal. Notwithstanding the foregoing, either party may terminate this Agreement for any reason or no reason upon written notice to the other party.

FEES AND PAYMENTS

Aspen94 employs a NO REFUNDS policy, regardless of use of the Services. ALL SALES ARE FINAL. Client will be responsible for all applicable taxes arising from this Agreement and the Services. Except for payments that are required to be made upon the execution of this Agreement or as otherwise provided in the Agreement, invoices for Services will be paid within 15 days from the date of invoice without setoff or deduction of any kind, including as a result of Client’s dissatisfaction with the Services. Unpaid invoices will be subject to a monthly service charge of 5% per month until such invoices are paid in full, and Client agrees to pay and reimburse Aspen94 all of its costs, fees, and expenses, including reasonable attorneys’ fees, incurred by Aspen94 in connection with collecting any amounts owing under this Agreement (collectively, “Finance Charge”); provided, that, notwithstanding anything to the contrary in this Agreement, if at any time the Finance Charge exceeds the maximum permissible rate under applicable law, the Finance Charge will be limited to the maximum permissible rate. Client acknowledges and agrees that Aspen94 may engage third parties, including collections agencies, to recover any and all amounts owing under this Agreement. Aspen94 may immediately suspend or terminate any Services if Client fails to make any payment required by this Agreement.

FULFILLMENT

Aspen94’s services are fulfilled through the use of discounted prepaid “blocks” of time, or by retroactively billing at our full hourly rate for those clients that do not have prepaid time available when service is requested. Prepaid amounts of time (i.e. 5 hours, 10 hours or 20 hours) are sold in advance to Aspen94 customers and time is deducted in quarter-hour increments as it is utilized. Aspen94 can provide timeline and cost estimates for any customer requests in advance of performing the services. Please contact your Aspen94 Solutions Consultant for more information or any requests.

CLIENT TESTING AND ACCEPTANCE

Client agrees to test all work performed by Aspen94 within 14 days of receiving notice of completion. Any concerns regarding the completeness or quality of work should be raised within 14 days of receiving notice of completion. If no concerns are raised within 14 days of completion, Client may incur additional fees for any additional work requested of Aspen94.

ADDITIONAL SUPPORT SERVICES

For Clients without sufficient prepaid time remaining on a previously purchased block of prepaid time and for Clients without an active Aspen94 Training and Support (“ATS”) Plan, for each support incident or help desk ticket of a billable nature, a one hour minimum fee at the “Per Hour Rate” then in effect will be incurred. If the issue cannot be resolved or the Services cannot be completed within the first hour, additional time will be billed at the “Per Hour Rate” then in effect, rounded to the nearest quarter hour. For Clients that have sufficient prepaid time remaining on a previously purchased block of prepaid time, for each support incident or help desk ticket of a billable nature, a quarter hour minimum fee at the “Per Hour Rate” then in effect will be incurred. If the issue cannot be resolved or the Services cannot be completed within a quarter hour, additional time will be billed at the “Per Hour Rate” then in effect, rounded to the nearest quarter hour. For Clients with an active ATS Plan, many Services are included for no additional fee. For each support incident or help desk ticket of a billable nature that is not covered by the Client’s ATS Plan, additional time will be billed at the “Per Hour Rate” then in effect, rounded to the nearest quarter hour. There is no minimum fee for support incidents or help desk tickets for Clients with an active ATS Plan. In all instances, any unused time will be forfeited and may not be applied to subsequent Services.

RESTRICTION OF USE

Except as expressly permitted by any terms and conditions governing third party software purchased through Aspen94, Client agrees not to: (i) resell or otherwise commercially exploit or make available to any third party the Services in any way; (ii) copy or distribute any part of the Services in any medium to any third party; or (iii) reverse engineer, reverse assemble, reverse compile, or otherwise attempt to create the source code from the Services; provided that, subject to the other terms and conditions of this Agreement, including the section titled “Assignability,” the foregoing will not prohibit any sale or transfer of the Services in connection with a sale or transfer of Client’s assets or equity interests to a third party.

CONFIDENTIALITY

Client agrees that all know-how, business, technical, and financial information it obtains from Aspen94 or its employees, representatives, or agents constitutes the confidential and proprietary information of Aspen94 (“Confidential Information”). Client agrees to hold the Confidential Information in strict confidence and not to use or disclose such information other than in accordance with this Agreement. For purposes of this Agreement, Confidential Information does not include (i) information that is or later becomes generally available to and known by the public, other than as a result of a disclosure by Client or its employees, representatives, or agents in breach of this Agreement, (ii) information that is or becomes rightfully available to Client on a non-confidential basis from a source (other than Aspen94) that is not bound by confidentiality obligations to Aspen94, or (iii) information that was known by Client before disclosure by or at the direction of Aspen94, as evidenced by Client’s written records.

NO SOLICITATION

During the term of this Agreement and for a period of two years thereafter, Client will not, directly or indirectly, solicit for employment or hire any current or former officer, director, shareholder, manager, employee, independent contractor, representative, or agent of Aspen94.

PUBLICITY AND ADVERTISING

Client acknowledges and agrees that Aspen94 may publicize and advertise the relationship between Aspen94 and Client, including the fact that Aspen94 provides Client with Services.

REPRESENTATIVES

Client acknowledges and agrees that Aspen94 is entitled to rely on requests for Services from any representatives or agents of Client without inquiring into whether such representative or agent is authorized to request such Services on behalf of Client.

RESELLER

Client acknowledges and agrees that Aspen94 is a reseller of certain third party software and that Aspen94 makes no representations or warranties, whether express or implied, regarding any such software. Client agrees to comply with any agreements, covenants, and terms and conditions governing such software, including any agreements governing the relationship between Aspen94 and such third parties.

PARTNER ALIGNMENT

Client agrees to align any current and future Act! or Zoho subscription(s) with Aspen94 as their preferred partner and to maintain the alignment with Aspen94 throughout the course of this engagement. Client further agrees not to remove the alignment or to align with another partner without a minimum of 30 days prior written notice to Aspen94.

DISCLAIMER OF WARRANTIES

CLIENT EXPRESSLY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND ASPEN94 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY CLIENT FROM ASPEN94, ITS EMPLOYEES, ITS AGENTS, ITS REPRESENTATIVES, OR ITS WEBSITE WILL CREATE ANY WARRANTY NOT OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.

LIMITATION OF LIABILITY

CLIENT AGREES THAT ASPEN94 WILL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF THIS AGREEMENT OR THE SERVICES, EVEN IF ASPEN94 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ASPEN94 ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL BE TERMINATION OF THIS AGREEMENT. IN NO EVENT WILL ASPEN94’S LIABILITY TO CLIENT, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES ACTUALLY PAID BY CLIENT TO ASPEN94 FOR SUCH SERVICES IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. CLIENT AGREES THAT THE FOREGOING IS AN AGREED ALLOCATION OF RISK AND IS A REFLECTION OF THE RIGHTS AND OBLIGATIONS AGREED UPON BY CLIENT AND ASPEN94 IN THIS AGREEMENT. NO ACTION ARISING UNDER OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.

INDEMNIFICATION

Client agrees to indemnify and hold harmless Aspen94, its officers, directors, employees, representatives, and agents from and against any and all losses, damages, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to any claims that Client has used the Services in violation of another party’s rights, in violation of any law, in violation of any provisions of this Agreement, or in connection with any other claim related to Client’s use of the Services.

ARBITRATION

Except as provided in the section titled “Governing Law and Jurisdiction” below, any controversy or claim arising out of or relating to this Agreement will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator will be final and may not be appealed. The arbitration will be conducted in Oakland County, Michigan and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Aspen94 may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

MODIFICATION OF TERMS OF SERVICE

Aspen94 may update, amend, modify, or supplement these Terms of Service at any time (“Updated Terms”). Any such Updated Terms will be posted on Aspen94’s website at https://aspen94.com/terms-of-service/. Client’s continued use of the Services after the posting of the Updated Terms on Aspen94’s website will be deemed to be Client’s agreement to the Updated Terms.

MISCELLANEOUS

Assignability. Client may not assign or transfer this Agreement, or its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without Aspen94’s express prior written consent. Any attempted assignment in contravention of the foregoing will be null and void. Aspen94 may assign this Agreement, or its rights or obligations under this Agreement, in whole or in part, at any time in its sole discretion.

Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan without reference to any conflicts of law principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts located in Oakland County, State of Michigan or the United States District Court for the Eastern District of Michigan for actions or proceedings for amounts owing from Client to Aspen94 under this Agreement and, in any such action or proceeding, consent to jurisdiction in such courts and waive any objection to the venue in any such court. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT, EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT.

Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

Amendment. Except as expressly permitted by this Agreement, no amendment or modification of this Agreement will be enforceable unless such amendment or modification is in writing and signed by both parties.

Notices. Any notices or other communications provided under this Agreement will be given: (i) via email; or (ii) by posting such notice on Aspen94’s website. For notices given by email, the date of receipt will be deemed the date on which such notice is transmitted.

Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or an inability to obtain energy, raw materials, or supplies, war, terrorism, riot, pandemics, or acts of God.

Authority. Client represents and warrants to Aspen94 that it has the full power and authority to enter into this Agreement and that it is binding upon Client and enforceable in accordance with its terms.

Survival. The following sections will survive the expiration or termination of this Agreement: “Fees and Payments,” “Restriction of Use,” “Confidentiality,” “No Solicitation,” “Disclaimer of Warranties,” “Limitation of Liability,” “Indemnification,” “Arbitration,” and “Miscellaneous.”

Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties as to the subject matter of this Agreement and supersedes all prior or contemporaneous communications, negotiations, representations, or agreements between the parties with respect to the subject matter of this Agreement.

Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile, electronic, digital, or PDF signatures), each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.