THESE SUPPLIER TERMS AND CONDITIONS (THESE “TERMS') TOGETHER WITH: (I) ANY PURCHASE ORDER(S) ISSUED BY ARCHER; AND/OR (II) ANY ORDER FORM(S), STATEMENT(S) OF WORK, OR SIMILAR DOCUMENTS EXECUTED BY BOTH PARTIES THAT INDICATE THAT THEY ARE GOVERNED BY OR SUBJECT TO THESE TERMS (EACH, AN “ORDERING DOCUMENT' AND COLLECTIVELY WITH THESE TERMS AND ANY ADDITIONAL TERMS LINKED BELOW OR OTHERWISE REFERENCED HEREIN, COLLECTIVELY, THE “AGREEMENT') SET FORTH THE TERMS AND CONDITIONS THAT APPLY TO ANY PURCHASE OF GOODS, RECEIPT OF SERVICES OR DELIVERABLES AND/OR USE OF SOFTWARE BY ARCHER AS PROVIDED BY Supplier PURSUANT TO THE APPLICABLE ORDERING DOCUMENT(S).
As used herein, the term “Archer' shall mean the Archer legal entity indicated on the applicable Ordering Document(s) and the term “Supplier' shall mean Supplier's legal entity providing the Goods, Services, Software or Deliverables identified on the Ordering Documents and such Supplier's Affiliates. “Affiliate' shall mean with respect to a party hereto, any legal entity, whether existing now or in the future, that either directly or indirectly controls, is controlled by or is under common control with such party. Any capitalized terms used but not defined in these Terms will have the meanings set forth in the Additional Terms linked below.
CONTROLLING DOCUMENT/ENTIRE AGREEMENT
The following additional terms and conditions (“Additional Terms') will apply to Supplier's provision of Goods, Services, or Software purchased under an Ordering Document:
- Provisions of Goods. If Supplier is providing goods to Archer (“Goods'), then the following additional terms and conditions apply: Goods Specific Terms.
- Provision of Services. If Supplier is providing services to Archer (“Services') or any related deliverables (“Deliverables'), then the following additional terms and conditions apply: Services Specific Terms.
- Provision of Software. If Supplier is providing on premises software or a SaaS solution, or any other software to Archer (“Software'), then the following additional terms and conditions apply: Software Terms.
- Archer Security and Privacy Terms. If Supplier will be accessing any Archer Data, Archer Systems or Archer Facilities (as each is defined therein) in connection with its providing Goods to Archer or provision of any Services or Software, then the following additional terms and conditions apply: Archer's Supplier Security and Privacy Terms.
ORDER OF PRECEDENCE
In the event of a conflict among these Terms, any Additional Terms or an Ordering Document, the terms of the applicable Ordering Document will control over any conflict with these Terms or the Additional Terms.
The following additional terms and conditions apply to all Ordering Documents.
The Agreement is effective as the date of the applicable Ordering Document and shall continue in force and effect as set forth in the Ordering Document.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
“Confidential Information' means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary, including, without limitation, any research, products, services, developments, inventions, discoveries, ideas, concepts, software, designs, drawings, engineering, specifications, documentation, processes, techniques, models, source code, object code, diagrams, flow charts, procedures, business and marketing plans or strategies, business opportunities, financial information, pricing information, sales information, customer and Supplier information, and the terms of the Ordering Documents. Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was rightfully obtained by recipient from a third party.
The recipient agrees not to disclose Confidential Information except to its Affiliates, and its and their employees, consultants, and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient's rights and fulfill its obligations under the Agreement and shall at all times use at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law or by the rules or requirements of any stock exchange on which the securities of the recipient is listed, but in any event only after reasonable notice to the disclosing party and cooperating in an attempt to obtain confidential treatment. Unauthorized disclosure of Confidential Information shall cause harm not compensable by damages, and the disclosing party shall be entitled to seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
Supplier may from time to time provide suggestions, comments or other feedback (“Feedback') to Archer with respect to the Confidential Information provided by Archer. Supplier agrees that all Feedback is and shall be given voluntarily. Feedback, even if designated as confidential by Supplier, shall not, absent a separate written agreement, create any confidentiality obligation for, or upon, Archer. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, Archer shall be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit (entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise) or to pay any royalties or other compensation in connection therewith.
For any Goods that Supplier properly delivers, any Services that Supplier properly performs or any Software properly provided (in connection with the foregoing “properly' shall mean in accordance with any and all terms and conditions set forth in the Agreement), Archer will be responsible to pay Supplier the amount(s) specified as and when specified on the applicable Ordering Document(s). For clarity, with respect to any Goods, Services or Software that are subject to acceptance by Archer, as indicated in the applicable Ordering Documents, Archer will have no obligation to pay any related fees unless and until it has accepted the applicable Goods, Services or Software pursuant to the applicable acceptance terms. Archer will also reimburse the reasonable, pre-approved travel and related expenses incurred by Supplier in providing any Goods, Services, or Software if specified in the applicable Ordering Document, but only in accordance with Archer's then-current travel and expense policies. If no expenses are specified in the applicable Ordering Documents, then Archer shall have no liability for any requested reimbursement of expenses. For any amounts that properly become due in accordance herewith, Supplier shall invoice Archer in a timely manner, but in any event no later than sixty (60) days from proper delivery of Goods, performance of Services, or provision of Software, as applicable. If Supplier fails to do so, Archer shall have no obligation to pay any such amounts.
Archer will pay the undisputed portion of Supplier's invoices therefor in accordance with the timing specified on the Ordering Document, or if no timing is specified on the Ordering Document then within sixty (60) days after Archer's receipt of the undisputed invoice. Supplier shall ensure that each invoice contains a reasonable level of detail as is necessary for Archer to determine that such invoice has been billed in accordance with the terms and conditions of the Agreement, including, without limitation, to the extent applicable: (i) reference to the applicable Archer purchase order number; (ii) each applicable tax; and (iii) any other information specified in any Ordering Documents or otherwise requested by Archer from time to time. All payments due to Supplier pursuant to an Ordering Document are subject to offset, which may be applied by Archer in its sole and absolute discretion from time to time and at any time for any amounts owed by Supplier to Archer and/or its Affiliates.
If Archer disputes any amount contained on an invoice (each, a “Billing Dispute'), Archer will notify Supplier in writing of the nature of the Billing Dispute as promptly as practicable after its determination that such a dispute exists. Archer may withhold payment of the disputed amounts and such payment will not be considered past due while the parties work in good faith to resolve the Billing Dispute. The parties will work in good faith to resolve each Billing Dispute within thirty (30) days following the date on which Supplier received Archer's notification thereof. If the parties are unable to resolve the Billing Dispute within such thirty (30) day period, it may be resolved pursuant to the dispute resolution section of the Agreement.
Unless otherwise specified in an Ordering Document, the prices set forth in the Ordering Document include, without limitation, all applicable federal, state and local taxes and Archer shall not have any liability to reimburse Supplier or otherwise pay for any such taxes.
In addition to any specific insurance coverage requirements set forth in any Ordering Document, Supplier shall at all times during the term maintain any insurance coverage that is required by law and/or as is the common practice in Supplier's business, which may include, without limitation, health, workers' compensation, unemployment compensation, disability, liability, or auto insurance. Upon request, Supplier shall promptly provide Archer with certificates of insurance or evidence of coverage reflecting that it is in compliance with the foregoing and naming Archer as an additional insured with respect to such coverage. Notwithstanding the generality of the foregoing, Supplier shall always maintain adequate insurance coverage for any Archer property under the care, custody or control of Supplier during its performance of its obligations under the Agreement.
TERMINATION FOR CAUSE
In addition to any termination rights set forth in any Ordering Document and/or the Additional Terms, Archer may immediately terminate the Agreement and/or any Ordering Document upon written notice to Supplier if: (i) Supplier is in breach of the Agreement and, if curable, fails to cure such breach with ten (10) days of notice thereof; or (ii) Supplier files a petition in bankruptcy, becomes insolvent, or dissolves. Unless otherwise specified in an Ordering Document, Archer shall only be liable for any Goods or Software properly provided or Services properly performed through the date of termination.
Termination of the Agreement is not an exclusive remedy and the exercise of either party of any remedy under the Agreement will be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.
REPRESENTATIONS & WARRANTIES
Supplier represents and warrants that: (i) its performance under the Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which it is bound; (ii) it has the full right and power to enter into and perform the Agreement without the consent of any third party; and (iii) there are no pending claims, suits, actions, allegations, charges, or investigations brought by a third party, governmental authority or industry body (“Third Party Actions'), and Supplier is not aware of any threatened Third Party Actions, that would prevent Supplier from performing under the Agreement. Supplier will promptly notify Archer if it becomes aware of any circumstances that arise that may or would cause Supplier to be in violation of the representations and warranties set forth herein.
EXCEPT FOR SUPPLIER'S WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Supplier will defend, indemnify and hold harmless Archer, its Affiliates and its and their officers, directors, employees and agents, from and against any and all Third Party Actions and all related losses, liabilities, damages, expenses and costs arising from or relating to: (i) any breach or alleged breach of any representation, warranty or other term or condition of this Agreement by Supplier; (ii) any infringement or alleged infringement by Supplier and/or any Goods, Services (including, without limitation, any Deliverable resulting therefrom) or Software provided by Supplier of any third-party's intellectual property rights; or (iii) any injury including bodily injury, disability or death, personal injury or property damage in any way attributable to, or arising out of, the performance by Supplier under the Agreement, including, without limitation, claims arising out of any negligent or intentional act or omission of Supplier, its employees, contractors or permitted subcontractors.
Archer will give Supplier prompt written notice of any Third Party Action for which it is seeking indemnity pursuant hereto. Supplier shall control the defense and settlement of such Third Party Action, but Archer shall have the right to participate in the defense of any such Third Party Action with counsel of its own choosing at Archer's cost. In no event will Supplier settle, compromise or consent to the entry of a judgment in a manner that would impose any unindemnified or nonmonetary liability on Archer without Archer's prior written consent, which shall not be unreasonably withheld.
If Archer's, any of its Affiliates', or its or their assigns' use of any Goods, Services (including, without limitation, any Deliverable resulting therefrom), or Software provided by Supplier are enjoined or are threatened by injunction, then Supplier shall, at its cost use reasonable efforts to obtain for Archer, its Affiliates and its and their assigns, the right to continue using the applicable Goods, Services, Deliverables, or Software. If Supplier is unable to do so in a manner and time period that is acceptable to Archer (in its reasonable determination), then Supplier shall at its cost and at Archer's option either: (a) substitute fully equivalent non-infringing Goods, Services, Deliverables, or Software, as applicable, or (b) refund in full the price paid by Archer for the applicable Goods, Services, Deliverables, or Software.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO SUPPLIER'S VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT, SUPPLIER'S INDEMNITY OBLIGATIONS UNDER THE AGREEMENT, OR ANY CLAIM ARISING AS A RESULT OF SUPPLIER'S BREACH OF ANY OF THE ADDITIONAL TERMS APPLICABLE TO ARCHER DATA, ARCHER SYSTEMS AND/OR ARCHER FACILITIES: (I) NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNTS PAID OR DUE TO BE PAID TO SUPPLIER PURSUANT TO THE AGREEMENT.
COMPLIANCE WITH LAW
Both parties shall comply with, and Supplier shall ensure that its permitted subcontractors comply with, all applicable laws and regulations in their performance under the Agreement (including, without limitation, the applicable laws, orders, policies and regulations of the jurisdiction in which Goods, Services, Deliverables, or Software are provided, including, without limitation, those relating to import, export and re-export of commodities, technical data and software, privacy, labor and employment, anti-discrimination and anti-harassment, freedom of association, environmental protection, hazardous substances management, pollution prevention and resource sustainability, waste management, recycling, protection of intellectual property, and anti-bribery and anti-corruption).
Notwithstanding the generality of the foregoing, both parties shall comply with, and Supplier shall ensure that its permitted subcontractors comply with, all applicable laws and regulations enacted to combat bribery and corruption, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act, the principles of the OECD Convention on Combating Bribery of Foreign Public Officials, and any corresponding laws of all countries where any Goods, Services, Deliverables, or Software are provided.
Furthermore, Supplier agrees that it will not export, re-export, resell or transfer any Archer information or technology: (i) in violation of any limitations imposed by the United States or any other jurisdiction, or (ii) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or other approvals.
In support thereof, from time to time, upon Archer's request, Supplier shall promptly complete a certificate representing and warranting to Archer its ongoing compliance with any and all laws and regulations applicable to its performance under the Agreement, as well as to furnish to Archer any information Archer reasonably determines is necessary for it to ascertain that Supplier is performing in compliance therewith.
Supplier and any permitted subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, gender identity, sexual orientation, sex, or national origin. Moreover, these regulations require that Supplier and any permitted subcontractor take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
Except as specifically approved by Archer in advance in writing (email is sufficient) Supplier will not use Archer's trademarks, service marks, trade names, logo or other product or service designations for any purpose, or make any public statement whatsoever (including, without limitation, press releases) regarding the existence of or details regarding the parties' relationship. In the event that Archer provides such written approval, all use of Archer's trademarks, service marks, trade names, logo or other product or service designations shall be subject to Archer's then-current trademark policy, and any other guidelines or policies as Archer may provide from time to time.
No right or obligation under the Agreement may be assigned by Supplier without the prior written consent of Archer, and any purported assignment without such consent will be null and void ab initio. Archer may, at any time and from time to time, assign any or all of its rights and obligations under the Agreement to any of its Affiliates. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any.
Unless otherwise specified in an Ordering Document, Supplier may not subcontract its performance hereunder without the prior express approval by Archer in advance in writing (email is sufficient). To the extent any subcontracting is specified in an Ordering Document or otherwise authorized by Archer in writing in advance, Supplier will: (i) remain directly responsible to Archer for the acts or omissions of each subcontractor; and (ii) ensure that each subcontractor is bound in writing to terms at least as protective of Archer as the terms and conditions of the Agreement.
Unless otherwise specified in an Ordering Document, Supplier will keep and maintain complete and accurate records relevant to its performance under the Agreement and will retain those records for as long as is required by law and/or as is the common practice in Supplier's business.
Archer or its nominee may, upon reasonable notice to Supplier, audit those relevant records of Supplier to ensure its compliance with the terms and conditions of the Agreement. Any such audit shall be conducted in a manner as to not unreasonably interfere with Supplier's business activities. If any such audit reveals that Supplier has breached any material term of the Agreement (as determined by Archer in its reasonable determination), then Supplier shall pay Archer's costs and expenses of conducting such audit and promptly remedy the breach.
All notices required or permitted by the Agreement must be in writing addressed to an authorized representative of the other party. In the case of a notice to Supplier, such notice will be deemed given when sent by confirmed email to an authorized representative of Supplier as specified in the applicable Ordering Document. In the case of a notice to Archer, such notice will be deemed given when sent by confirmed email to an authorized representative of Archer with a copy to firstname.lastname@example.org.
Supplier is an independent contractor and no partnership or joint venture shall be deemed to exist between them as a result of the relationship contemplated hereby. The Agreement does not constitute authority for Supplier to act for Archer as its agent or make commitments for Archer. Supplier shall be responsible for all costs and expenses incident to providing the Goods, Services, Deliverables or Software.
If any provision of the Agreement is held invalid or unenforceable to any extent or in any application, the remainder of the terms of the Agreement, or the application thereof to different persons or circumstances or in different jurisdictions, shall not be affected thereby.
Unless otherwise specified in an Ordering Document, this Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement or to their relationship.
DISPUTE RESOLUTION, JURISDICTION AND VENUE
If there is a dispute between the parties arising out of, or in connection with, the Agreement the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If either party believes that such negotiations will not result in a resolution, then it shall so notify the other party and thereafter either party may commence litigation in the state or federal courts in San Francisco County, California. The parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of which will be conclusive evidence of the judgment) or in any other manner provided by law. Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process.
Notwithstanding anything to the contrary in the Agreement, either party may at any time seek equitable relief in order to protect its confidential information or intellectual property; provided that it must do so in the state or federal courts in San Francisco County, California. The parties hereby waive any bond or other security requirements that may be necessary for obtaining equitable relief.
In any action to enforce the terms and conditions of the Agreement, the prevailing party shall be entitled to recover all court costs, reasonable attorneys' fees and related expenses, in addition to any other relief to which it may be entitled.
SURVIVAL OF OBLIGATIONS
Any rights and obligations that by their nature extend beyond the expiration or termination of the Agreement shall survive the expiration or termination of the Agreement, including, without limitation, each party's confidentiality obligations, Supplier's indemnification obligations and the limitation of liability.
Neither party will be liable for any failure to perform, caused by circumstances beyond its reasonable control and not reasonably foreseeable and preventable, including, without limitation, fire, earthquake, flood, acts of God, acts of war, acts or terrorism, government action, pandemic, epidemic, or other similar catastrophic occurrences (each, a “Force Majeure Event'). The obligations of a party that are prevented from being performed (“Non-performing Party') by a Force Majeure Event shall be extended on a day-to-day basis for the time period \that the Force Majeure Event prevents such performance, so long as the Non-performing Party: (i) promptly notifies the other party of the occurrence of the Force Majeure Event, its effect on performance, and how long it is expected to last; (ii) updates such information as reasonably necessary; and (iii) uses reasonable efforts to limit any loss or damages to the other party, mitigate the delay, and resume performance as soon as practicable. Should a Force Majeure Event continue for more than ten (10) consecutive days, Archer may terminate the Agreement and/or any impacted Ordering Document upon written notice to Supplier, will have no liability in connection therewith and shall be entitled to a refund of any amounts paid in connection with any Goods that have yet to be delivered, Services that have yet to be performed or remaining period of any Software Subscription Term.
No failure or delay of either party in exercising at any time any of its rights, powers or remedies under the Agreement, in exercising any election or option provided herein, or in requiring the performance by the other party of any of the provisions herein will in any way be construed to be a waiver of such provisions, and any waiver of any provision granted on one occasion shall not be deemed a waiver of such provision on other occasions.
CHANGES TO THESE TERMS AND ADDITIONAL TERMS
The version of these Terms and any Additional Terms in effect as of the date of the applicable Ordering Document(s) will govern the provision of Goods, Services, or Software pursuant thereto. Archer shall at all times have the right to make changes to these Terms and any Additional Terms provided that such changes shall only apply to any Ordering Document subsequently entered into by the parties.