Terms and Conditions

Services

ArcherPoint agrees to provide to Client the services described in one or more Statements of Work signed by the parties from time to time (“Services”). Each Statement of Work or "SOW" will become a part of this Agreement at the time that it is signed by both parties. CLIENT ACKNOWLEDGES AND AGREES THAT ARCHERPOINT WILL ONLY PROVIDE SERVICES UNDER THIS AGREEMENT PURSUANT TO AN EFFECTIVE STATEMENT OF WORK.

Each SOW will set forth specific Services to be provided, Service Deliverables, if any, Client obligations, the schedule for performance of the Services, each party’s designated contact and other matters. In the event of a conflict between this Agreement and any SOW, the SOW will control.

Fees and Payment

Unless otherwise agreed in an SOW, ArcherPoint will provide all Services on a time and materials basis in accordance with ArcherPoint rates in effect at the time the Services are performed. The ArcherPoint Standard Terms & Conditions attached to this Agreement as Exhibit 1 lists the rates and payment terms in effect and may be changed from time to time with thirty (30) days prior written notification.

All late payments will be subject to an interest charge of 1.5% per month, or the maximum amount allowed by law, if less. Client will reimburse ArcherPoint for all expenses reasonably incurred in the collection of amounts due, including reasonable attorneys’ fees.

Client will reimburse ArcherPoint for reasonable out-of-pocket expenses incurred in the performance of the Services (e.g. travel and lodging expenses, cost of supplies, etc.).

Confidentiality

Each party agrees to hold in confidence all information, trade secrets, materials, or proprietary information now or hereinafter provided to it by the other party in connection with the Services and Service Deliverables (“Confidential Information”). Confidential Information includes, but is not limited to fee schedules, pricing methods, data, procedural/tactical approaches to areas of the business, strategic business decisions, personnel information, and all other proprietary information. Neither party shall use Confidential Information for any reason other than to enable such party to properly perform its duties under this Agreement, and each party will limit the disclosure of Confidential Information to personnel or advisors that need to know all or part thereof. Each party’s obligations will be satisfied if it uses the same degree of care as it does for its own information of a similar character, but not less than reasonable degree of care. Each party shall inform its personnel and advisors of this duty and ensure that each such person bound in writing to protect the confidentiality of the Confidential Information so advised shall abide by these provisions. Confidential Information shall not include information which (i) is in the receiving party’s possession at the time of disclosure; (ii) before or after it has been disclosed to the receiving party becomes part of public knowledge without action by the receiving party; (iii) is approved for release by authorization of the disclosing party; (iv) is disclosed to a third party not in violation of any obligation of confidentiality; or (v) is independently developed without reference to Confidential Information. Each party shall promptly notify the other party if it learns there has been any loss of confidentiality of Confidential Information. Each party further agrees not to: (i) dissemble, decompile or reverse engineer any of the other party’s Proprietary Information, (ii) attempt any unauthorized access to or compilation of any of the other party’s Proprietary Information, and (iii) duplicate or reproduce any of the other party’s Proprietary Information except as necessary to perform this Agreement.

Representations, Warranties, Disclaimer and Limitation of Liability

Each party represents and warrants that (i) it has full authority to execute and perform this Agreement; (ii) this Agreement has been duly executed and delivered and constitutes a legal, enforceable and binding obligation of such party; (iii) it will comply with all applicable state, federal, and local laws, (iv) execution of this Agreement will not beach any other agreement; (v) no approval, action or authorization by any governmental authority or agency is required for the execution and performance hereof or, if it is, such approval, action or authorization has been obtained and written evidence thereof has been provided.

ArcherPoint represents and warrants that it will perform the Services in a professional and workman like manner in accordance with generally recognized industry standards.

CLIENT ACKNOWLEDGES AND AGREES THAT ANY THIRD PARTY SOFTWARE AND HARDWARE PROVIDED THROUGH ARCHERPOINT WILL BE GOVERNED BY THE WARRANTIES OF SUCH THIRD PARTIES, AND THAT ANY USE OF SUCH THIRD PARTY SOFTWARE OR HARDWARE WILL BE GOVERNED BY ANY AGREEMENT BETWEEN CLIENT AND THE APPLICABLE THIRD PARTY PROVIDER AND ANY APPLICABLE WARRANTIES FROM SUCH THIRD PARTY. ARCHERPOINT MAKES NO WARRANTY FOR THIRD PARTY SOFTWARE OR THIRD PARTY HARDWARE PROVIDED BY ARCHERPOINT. NEITHER ARCHERPOINT NOR ANY THIRD PARTY WARRANTS OR REPRESENTS THAT ANY THIRD PARTY SOFTWARE OR THIRD PARTY HARDWARE WILL MEET ANY OR ALL OF CLIENT’S BUSINESS REQUIREMENTS.

EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY WARRANTED OTHERWISE IN SECTION 4.1 OR 4.2, ALL SERVICES AND SERVICE DELIVERABLES ARE PROVIDED “AS IS” AND “WHERE IS” AND EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS FOR SERVICES AND SERVICE DELIVERABLES BY THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ARCHERPOINT DOES NOT WARRANT THAT THE SERVICES, SERVICE DELIVERABLES, OR ANY THIRD PARTY PRODUCTS ARE ERROR-FREE, OR WILL OPERATE IN AN UNINTERRUPTED MANNER OR IN COMBINATION WITH OTHER SOFTWARE PRODUCTS.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATING TO LOST PROFITS OR LOSS OF BUSINESS OPPORTUNITY) EVEN IF THE PARTY CLAIMING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARCHERPOINT’S AGGREGATE LIABILITY FOR ALL ACTIONS AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO ARCHERPOINT BY CLIENT FOR SERVICES PURSUANT TO THIS AGREEMENT OVER THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE APPLICABLE CLAIM. Client acknowledges that the limitation of liabilities and disclaimers of warranty contained herein constitute an agreed upon allocation of risk between the parties, have been factored into ArcherPoint’s pricing of the Services, and are an essential element of the bargain between the parties.

Non-solicitation

During the term of this Agreement and for a period of one (1) year after termination of the Agreement for any reason, the parties shall not solicit for hire or hire, directly or indirectly, any person who, during the term of the Agreement, was an employee or subcontractor, without prior written permission. The parties acknowledge and agree that money damages resulting from the breach of this Section 5 would be difficult, if not impossible, to measure. The parties therefore agree that liquidated damages shall be recoverable in an amount equivalent to six (6) month's gross compensation for the employee and/or subcontractor at issue. The parties acknowledge and agree that this liquidated damages provision is reasonable and does not constitute a penalty.

Term and Termination

This Agreement shall commence on the Effective Date and continue unless terminated in accordance with this Agreement. Either party may terminate this Agreement upon thirty (30) days written notice. Termination by Customer shall not relieve it of the obligation to pay expenses incurred or Fees for Services rendered up to the date of termination; provided, however, that ArcherPoint shall make commercially reasonable efforts to mitigate Fees and expenses in the period between notice of termination and effective date of termination.

Upon the termination of this Agreement, each party will return to the other, retaining no copies whatsoever, all copies of Proprietary Information in their possession and all payment obligations and the provisions of Sections 2, 3, 4.3, 4.4, 4.5, and 5 through 16 will survive termination of this Agreement and remain enforceable.

Dispute Resolution

The parties agree to make reasonable efforts to resolve any dispute arising between them prior to invoking the procedures set forth in Section 7.2. Such efforts will include the escalation of the dispute to a senior management executive of each party who has full authority to resolve the dispute on behalf of the party.

The parties will follow the mediation and arbitration procedures as follows:

    If a dispute arises out of or relates to this Agreement or its breach (with the exception of rights to injunctive relief with respect to proprietary rights and obligations with respect to confidentiality), and the parties have not been successful in resolving the dispute through direct negotiation pursuant to Section 7.1, then the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Rules”) before resorting to arbitration. The cost of the mediation will be borne equally by the parties. The parties, their representatives, other participants and the mediator will hold in confidence the existence, content and result of the mediation. The location of mediation will be in the jurisdiction set forth in Section 7.3 or such other location as the parties may mutually agree.
    If after mediation the parties are unable to resolve the dispute, the dispute will be settled in binding arbitration administered by the AAA under the Rules and will proceed under the Expedited Procedures of such Rules. The cost of the arbitration will be borne equally by the parties pending the arbitrator’s award, and then the prevailing party in the dispute will be entitled to receive from the other party its reasonable attorneys’ fees and costs. The parties, their representatives, other participants and the arbitrators will hold in confidence the existence, content and result of the arbitration. The location of mediation will be in the jurisdiction set forth in the jurisdiction set forth in Section 7.3 or such other location as the parties may mutually agree. The decision of the arbitrator will be confidential, pursuant to the provisions of Section 3 hereof, and will be non-appealable.

The parties agree that the substantive laws of the State of Georgia, USA, will govern with respect to all matters relating to or arising from this Agreement and each SOW and that such laws will apply without regard to principles of conflict of laws. To the extent binding arbitration is not required, the parties further agree and hereby submit to the exclusive jurisdiction and venue of the state courts located in Atlanta, GA, USA, with respect to such matters.

Ownership of Tools

Any intellectual property, methodologies, processes, routines, libraries, tools, or technologies created, adapted, or used by ArcherPoint in its business generally, whether existing prior to our work pursuant to this Agreement, produced as a result of ArcherPoint’s work pursuant to this Agreement or otherwise, including all source code, object code, models, strategies, formulae, programming, forms, documentation, data compilations, reports, media, materials, objects, scripts, and other programmatic elements, any derivative works of or to the foregoing and all associated intellectual property rights (collectively, the "Tools") shall be and remain ArcherPoint’s sole property. To the extent any of the Tools are incorporated in whole or in part into the Service Deliverables under this Agreement, ArcherPoint hereby grants to Client a perpetual, non-exclusive, royalty free, worldwide license to use such Tools in conjunction with the Service Deliverables.

Assignment

The parties may, with written notice to the other party, assign or transfer this Agreement provided that such assignee will succeed to all of the assignor’s rights and obligations hereunder. Such written notice will include the effective date of the Assignment and the entity or entities receiving rights and assuming obligations under the Agreement. Any attempt to assign this Agreement in contravention of this Section 9 will be void and of no force and effect.

Severability

If any one or more of the provisions contained herein will for any reason be held to be unenforceable in any respect, such unenforceability will not affect any other provision of this Agreement, but this Agreement will then be construed as if such unenforceable provision or provisions had never been contained herein.

Section Headings

The headings of the Sections herein are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

Notices

Any notice required to be sent or served under this Agreement may be delivered by hand, confirmed fax transmission, or mail, postage prepaid, certified, return receipt requested to the address set forth in the introductory paragraph of this Agreement.

Independent Contractors

All work performed in connection with this Agreement will be performed by ArcherPoint as an independent contractor and not as an agent of Client. Nothing contained in this Agreement will create a joint venture or partnership between the parties and neither party will have the authority to bind the other party.

Waiver

A waiver of a breach or default under this Agreement will not be waiver of any subsequent breach or default hereunder. Failure of either party to enforce compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition.

Excused Performance

No party will be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement (other than payment obligations) to the extent that they are unable to perform directly or indirectly due to any cause or circumstance beyond the reasonable control of such party, including without limitation an act of war, war, terrorism, strike or other labor dispute, an act of God, fire, flood, storms, earthquake, or similar event (“Force Majeure”). The party affected by an event of Force Majeure will promptly notify the other party in writing, and will be given additional time to perform in a period equal to the delay caused directly by such event. The party so affected will act diligently in attempting to remedy the cause by taking reasonable steps to resume performance with the least possible delay.

Entire Agreement; Amendment; Incorporation

This Agreement together with all exhibits and all other attachments which are made part of this Agreement, constitute the entire agreement between the parties and supersedes any prior or contemporaneous oral or written representations with regard to the subject matter hereof. This Agreement and any SOW, except with regard to notices regarding changes to Exhibit 1 from ArcherPoint which will not require Client’s acceptance, may not be amended, modified, or superseded except by a writing signed by both parties.


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