Terms and Conditions
PRODUCT PRICES, TAXES AND TRADE-INS Except as otherwise expressly stated on the Aspire Quote, all prices are subject to change without notice prior to receipt of Customer’s acceptance of Aspire Technology Partners Quote (hereinafter referred to as “Quote” prior to Aspire acceptance, and “Customer’s Order” after Aspire acceptance). Except as otherwise expressly agreed, all invoice prices are those in effect on date of shipment, unless otherwise agreed to by Aspire Technology Partners (“Aspire”) in writing. All pricing information in published or printed material is provided for general information and estimation purposes only and is neither a quotation nor offer to sell. Prices do not include applicable federal, state or local taxes and, unless expressly identified and itemized, do not include freight, handling or insurance. All taxes applicable to Products ordered shall be paid by Customer, or in lieu thereof, Customer shall provide Aspire prior to shipment of the Customer Order with a tax exemption certificate acceptable to the taxing authorities. Eatontown, NJ shall be the acceptance and fulfillment location for any Customer Order. If a quoted and/or ordered price includes a trade-in allowance based upon Customer’s trade-in of goods, then Customer shall comply with the applicable vendor return requirements of the applicable manufacturer’s trade in agreement. Any such trade-in goods must be received by the applicable manufacturer on or before the date specified in the manufacturer’s trade in agreement or, if no such agreement exists, by the sooner of the date specified in a Quote or sixty (60) days from delivery of the replacement goods. If Customer fails to return such trade-in goods as required by the manufacturer the trade-in allowance shall be forfeited and Aspire shall invoice Customer for the amount of the trade-in allowance and Customer will pay such invoice.
SERVICE All service prices are based on work being performed during normal business hours (Monday through Friday) and at Customer locations, or as otherwise agreed to by Aspire in writing. Services will be defined in the associated Aspire Quote, a mutually agreed upon Statement of Work, or written Service descriptions, including but not limited to a Product manufacturer’s support service offering. Aspire reserves the right to subcontract; provided Aspire remains liable for the subcontractor’s performance under the terms of the Agreement. Unless otherwise expressly agreed upon Customer will own any work or reports that are developed during the Service delivery. Security arrangements and access for Aspire at the Customer’s location is the responsibility of Customer. Customer will accompany any Aspire employee or agent while on-site at a Customer location. Installation service prices are based on Aspire being provided with a complete list of the installation sites at least two (2) weeks prior to the commencement of the project and flexibility to build and control the schedule of site implementations. Customer will notify Aspire in writing of cancellations of scheduled site visits no less than five (5) business days prior to such scheduled site visit. Customer will notify Aspire in writing of cancellations of scheduled site visits no less than five (5) business days prior to such scheduled site visit. If Customer requests a change to the scope of work or the number of devices/office locations to be implemented from that specified in the applicable Customer Order, Aspire reserves the right to adjust terms of the Customer Order impacted by the requested change, including, without limitation, pricing and any delivery requirements.
THIRD PARTY MAINTENANCE Any third-party maintenance or support services resold by Aspire hereunder, including but not limited to Cisco SMARTNet, are subject to the terms and conditions for such services, as identified by the third party provider and available from Aspire upon Customer’s written request. Aspire is not a party to any such third-party terms and conditions.
SOFTWARE AND SUBSCRIPTIONS Any software or subscriptions provided under this Agreement are provided exclusively under the associated software vendor’s license agreement, see Cisco’s terms and conditions here: https://www.cisco.com/c/en/us/about/legal/cloud-and-software/software-terms.html and all other vendor Terms and Conditions are available from Aspire upon Customer’s written request. All software and subscription license terms are established directly between the Customer and the owner or licensor of the software or subscription. Unless Aspire is identified as the owner or licensor of the software, Aspire is not a party to any such software license and Aspire makes no warranties or representations related to the ownership, use or operation of the software or subscription. Unless agreed upon by both parties in writing and to the extent permitted by law, any software or subscription Orders accepted under these terms are non-cancellable and may not be terminated. Subscriptions will automatically renew for the renewal period indicated on the quote unless you notify Aspire in writing at least 45 days before the end of your current term of your intention not to renew.
PAYMENT TERMS Subject to Customer maintaining a credit status acceptable to Aspire, Payment of all invoices are due thirty (30) days from date of invoice, unless otherwise agreed upon in writing by both parties. Invoices are issued upon shipment of Products from the manufacturer. Legal ownership of Products transfers immediately at the point of shipment from the manufacturer (“FOB Shipping Point”). Aspire reserves the right to charge Customer a late payment fee of 1.5% of the outstanding balance per month, or partial month, for any invoice unpaid beyond its due date. Customer shall be liable for all collection, including attorneys’ fees and costs incurred by Aspire to effect collection of any past due invoices or to otherwise enforce the terms and conditions of the parties’ agreement. Items sent to a Aspire facility for staging, warehousing and/or pre-configuration purposes will be invoiced to the Customer upon shipment from the manufacturer. If Customer secures a leasing arrangement with a third-party leasing company (“Customer Lessor”) and Aspire deems evidence of such financing arrangement to be sufficient, Aspire may, at its sole discretion work with Customer and the Customer financing party to facilitate payment to Aspire from the financing party on behalf of Customer. Notwithstanding any financing arrangement, Customer shall remain directly responsible and liable for complete and timely payment of all invoices issued hereunder.
CONSUMPTION Refers to charges and billing mechanisms based on the Customer’s actual usage of Services, resources, or Products outlined in the Aspire Quote and the respective manufacturer’s Terms of Sales or End User License Agreement are available from Aspire upon Customer’s written request. Customers are billed on a consumption basis, based upon the manufacturer’s pricing policies and Customers actual usage reporting as stated in the Aspire Quote. Customer usage is tracked through specified metrics and invoiced at the end of each monthly billing period, or as otherwise stated in the Aspire Quote. Aspire Cloud Vault storage usage, as well as storage usage from other manufacturers, is billed per month, calculated based on the average storage utilized during the billing period. Payments are due within 30 calendar days of the invoice date unless otherwise agreed upon in writing by both parties, with late fees applied for overdue payments. Providers offer tools to monitor usage, and their system of record serves as the authoritative source for billing calculations. Discrepancies must be reported within 15 days of invoice receipt. Pricing may be adjusted with 30 days’ written notice, excluding applicable taxes. Termination of services requires written notice, and all outstanding invoices must be settled within 30 days. Disputes follow a process of negotiation, mediation, and arbitration, while amendments to the Agreement require mutual written consent.
SHIPPING AND DELIVERY Customer shall be responsible for all freight, handling and insurance charges. Aspire shall select the carrier unless otherwise instructed by Customer. In no event shall Aspire have any liability in connection with shipment, nor shall the carrier be considered an agent of Aspire. Aspire shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay. All freight charges for drop shipments via surface or airfreight will be prepaid by the manufacturer or Aspire, unless paid in advance by Customer or otherwise agreed by Aspire. Any prepaid freight charges for such shipments shall be added to the charges listed on the applicable invoice and Customer agrees to reimburse Aspire for such freight charges. Unless expressly specified otherwise in the applicable Quote, Customer shall accept and pay for partial shipments of goods.
EXPEDITED DELIVERY Customer may request and Aspire may agree to provide Expedited Delivery of Products. If Aspire accepts such request Aspire will assess an Expedited Delivery fee equal, to two percent (2%) of the unit list price for the Product for which Expedited Delivery is requested, unless otherwise specified on the applicable Aspire Quote. As used herein, “Expedited Delivery” shall mean shipment to a Customer-designated location within a time frame that is sooner than the earliest date of availability from the manufacturer, such delivery is typically within forty-eight (48) hours of Customer’s written request for expedited delivery. Products ordered in response to a Customer request for Expedited Delivery may have distributor part numbers that do not match the manufacturer part numbers as quoted by Aspire. Products delivered will be at the standard operating system revision level as supplied by the distributor.
CANCELLATION OF ORDERS Any Customer request to cancel or modify a Customer Order will be subject to and Customer agrees to pay all costs, expenses and fees incurred by Aspire from the manufacturer, the supplier and/or its shippers as a direct result of any such cancellation or modification. Customer may be required to pay the full Product purchase price if the applicable manufacturer and/or supplier will not permit cancellation and/or modification of a corresponding order issued by Aspire. Services are terminable upon not less than 30 days prior written notice, except as otherwise expressly agreed upon.
RETURN POLICY Customer’s right to return hardware and software is subject to the return policies and fees imposed by the applicable manufacturer. Credit for items delivered to Customer may be issued by Aspire only upon prior written approval from Aspire. Any such approval must be in the form of a written Return Material Authorization (RMA), which must accompany the returned items. An RMA must be requested by Customer from Aspire within the period required by the applicable manufacturer. Items returned pursuant to the foregoing procedure may be subject to a manufacturer restock fee which Aspire shall invoice and Customer agrees to pay in full. Items returned due to Aspire shipping error are not subject to restocking fees. Returned items must be in the original shipping cartons, undamaged, unused and unaltered. Aspire shall have the right to reject return of items and/or impose additional charges which Customer agrees to pay for any equipment received without an RMA and/or in a condition other than described. In addition to any applicable vendor return policy, the Parties acknowledge that opened software packaging makes the associated software non-returnable. All shipments of returned items must be shipped prepaid by Customer to the warehouse location specified in the RMA. Aspire will reimburse shipping costs for Products returned due to a shipping error. Aspire will use reasonable commercial efforts to inspect returned items upon receipt for compliance with the foregoing conditions. A credit for properly returned items will be entered against the original invoice for the ordered items. All RMA’s issued are valid for the period of time allowed by the applicable manufacturer after which time the RMA will be cancelled.
LIMITED WARRANTY Except as otherwise expressly stated all Products provided under these terms are new and may be subject to the manufacturer’s new product warranties. Wherever permitted by the manufacturer and contractually permissible Aspire assigns to Customer; for other Product like software Customer may enter an associated license agreement directly with the manufacturer that contains the manufacturer’s warranty. Aspire does not modify, amend or extend the terms of the manufacturer’s warranty. Customer’s remedies under the manufacturer’s warranty are their exclusive remedy. Aspire warrants that its services hereunder will be performed by qualified individuals in a professional and workmanlike manner conforming to generally accepted industry standards and practices, and in strict accordance with all applicable laws, regulations, codes and standards of government agencies or authorities having jurisdiction. Aspire services hereunder are supported against defects in workmanship for thirty (30) days after installation. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION ASPIRE DISCLAIMS ANY AND ALL OTHER WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ASPIRE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. ASPIRE AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESPECT TO ASPIRE PRODUCTS BEING FREE FROM BUGS, ERRORS, OR OMISSIONS. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING ELSE HEREIN, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO MONEY PAID TO ASPIRE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. AND IN THE CASE OF DAMAGES RELATING TO ANY ALLEGEDLY DEFECTIVE OR INFRINGING PRODUCT, SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER FOR SUCH PRODUCT. EXCEPT TO THE EXTENT OF THEIR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY PERSONAL INJURIES OR PROPERTY DAMAGES, OR ANY OTHER LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DELAY, BUSINESS INTERRUPTUON, OR LOST DATA, OR EXEMPLARY, SPECIAL, PUNITIVE, OR ANY OTHER INDIRECT DAMAGES, EVEN IF ASPIRE HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
WAIVER OF JURY TRIAL: ASPIRE AND CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT EITHER PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
INDEMNITY Aspire is an authorized reseller of various 3rd party Products, the indemnity protection for those Products, if any, would be provided by the respective manufacturer under the terms of the manufacturer’s terms of sale or end user license agreement available from Aspire upon Customer’s written request. Aspire does not offer an indemnity on 3rd party Products. With regard to provided Service (as opposed to third party manufacturer support service) Aspire agrees, at its own expense, to pay all Damages (as defined below) and defend Customer from (or at Aspire’s option, settle) any claim instituted by a third party and asserted against Customer that the Aspire provided Service (in the form delivered to the Customer) (the “Aspire Indemnified Service”), when used in accordance with the applicable Aspire documentation ( including the Statement of Work), infringes any United States patent, copyright, trade secret, or other proprietary right of a third party (“IP Claim“), provided that Customer: (i) promptly notifies Aspire in writing of any such IP Claim; (ii) gives Aspire sole control over the investigation, preparation, defense and settlement of the IP Claim; and (iii) assists and fully cooperates with Aspire in the defense of same. Aspire agrees to pay any damages awarded by a court against Customer (or agreed to in a settlement by Aspire) resulting from the IP Claim, including any awarded costs and awarded attorneys’ fees (collectively “Damages”). Aspire will not be responsible for any settlement it does not approve in writing prior to such settlement. In no event will Aspire have any obligations under this Section or any liability for any IP Claim if the IP Claim is caused by, or results from: (i) any negligent or willful misconduct of Customer; (ii) the combination or use of the Aspire Indemnified Service with any equipment, data or other materials, if such IP Claim would have been avoided absent such combination or use; (iii) modification of the Aspire Indemnified Service by anyone other than Aspire if such IP Claim would have been avoided by use of the unmodified Aspire Indemnified Service; (iv) continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (v) use of the Aspire Indemnified Service in a manner not strictly in accordance with this Agreement.
INDEPENDENT CONTRACTORS The relationship between Aspire and Customer is that of independent contracting parties. Nothing contained in this Agreement shall be construed or interpreted to create any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
PRIVACY: CONFIDENTIAL INFORMATION “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction to prevent any breach or continued breach of this section. The receiving party agrees to promptly report any breaches of this section to the disclosing party and cooperate with the disclosing party in efforts to mitigate the impact of any such breach. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of these Terms by the receiving party; (ii) was independently developed, or otherwise acquired, by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure.
TRANSFER AND PROCESSING DATA In order for us to provide our Services, you represent that you have appropriate right, title and interest, and where required, consent, as necessary for lawful use, processing, storage and transfer as intended under this Agreement agree that we may process, transfer and store information about Customer provided data in the United States and other countries, where you may not have the same rights and protections as you do under local law.
THIRD-PARTY MATERIALS Aspire may provide links to Products and Third-Party Materials. Aspire does not endorse or control, and makes no representations or warranties of any kind, regarding any Third-Party Materials including, but not limited to, the content, accuracy, quality, appropriateness, reliability, timeliness, safety, legality or any other aspect thereof. Your access to and use of Third-Party Materials is at your own risk.
FEEDBACK You can submit Feedback to us. You understand that Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Aspire. Aspire shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
NON-ASSIGNMENT: NO THIRD-PARTY BENEFICIARIES Neither party shall not assign any of its obligations hereunder to any third party without the express, written consent of the other party. This Agreement is only for the benefit of the parties, and except as otherwise expressly provided, (including the manufacturer Terms of Service or End User License Agreement, referenced above) no third party shall have a right to enforce any provision of this Agreement.
EXPORT Each Party shall comply with all relevant export and sanctions laws and regulations of the United States to assure that neither any software deliverable, if any, nor any direct product thereof is (1) exported or re-exported, directly or indirectly, in violation of any export, the U.S. Export Administration Regulations administered by the U.S. Department of Commerce, and U.S. sanctions administered by the U.S. Department of the Treasury (“Export Control Laws”). Customer represents and warrants that it will not sell, export (including “deemed” exports), re-export, transship, transfer, transmit, divert or otherwise dispose of the Products, directly or indirectly to any person, firm, entity, or country prohibited by applicable Export Control Laws, or for any purpose prohibited by Export Control Laws.
FORCE MAJEURE Aspire expressly disclaims liability for any failure, delay or error in the performance of any of its obligations under this Agreement caused, in whole or in part, by conditions beyond its reasonable control, including but not limited to strikes or other labor disputes; regional, national, or worldwide pandemics, health or similar emergencies; riots, war, terrorist actions or insurrections; fires, floods or other natural causes or catastrophic events; or the acts or regulations of any government or agency or subdivision thereof. In the event that any such condition prevents Aspire from performing any of its obligations under this Agreement, Aspire shall notify Customer as soon as possible when performance is expected and will keep the Customer advised on the progress of resolving the circumstance giving rise to the non-performance. Customer shall accept all Products which have been shipped before such interruption, or which may be completed within sixty (60) days of such notice, notwithstanding such delay. In the event products or services cannot be completed within such timeframe, and further provided the Products have not been manufactured as of the time of such interruption, Aspire shall have the right, exercisable in its sole discretion, to terminate the applicable Customer Order immediately upon written notice without further liability of any kind with respect to that Customer Order.
GOVERNING LAW: TIME LIMITATIONS This transaction shall be governed in all respects by the substantive laws of the State of New Jersey (excluding choice of law provisions). All actions, regardless of form, arising out of or related to this transaction or the Products sold hereunder must be brought by either party before the State and Federal Courts located within the State of New Jersey within two (2) years after the date of Aspire invoice, notwithstanding any longer applicable statute of limitations. The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) shall NOT apply to the transactions to which these Terms and Conditions apply, nor to any other aspect of the relationship between the parties, and application of the CISG is expressly disclaimed and waived.
SEVERABILITY These terms and conditions of sale shall not be construed against Aspire but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance from these Terms and Conditions.
WAIVER: MODIFICATION A waiver of any breach of this Agreement shall not be effective unless it is in writing and signed by both Parties. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by that Party. This Agreement may be modified only by mutual written agreement of authorized representatives of the parties.