Cloud Service Offerings
TERMS OF SERVICEThis Service Offering contains proprietary material and information, the use of which is subject to andexpressly conditioned upon acceptance of these Terms of Service (the “Terms of Service”).
This Agreement is a legally binding document between you (meaning the individual person or the entitythat the individual represents that has purchased the Service Offering for its internal productive use andnot for outright resale) (the “Customer”) and Archer (which means (i) Archer Technologies LLC, if
Customer is located in the United States, Mexico or South America; (ii) Archer Technologies Ireland
Limited; or (iii) other authorized Archer entity as identified on the Archer quote or other Archer ordering
document) (the “Service Provider”). Unless Archer agrees otherwise in writing, this Agreement governs
Customer's use of the Service Offering, except to the extent all or any portion of the Service Offering is:(a) the subject of a separate written agreement set forth in a quotation issued by Archer; or (b) governedby a third party licensor’s terms and conditions. Capitalized terms have meaning stated in the Agreement.
By proceeding with the installation, use or reproduction of this Service Offering, or authorizing any otherperson to do so, you are representing to Archer that you are (i) authorized to bind the Customer; and (ii)agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of theparties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum
extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or
validity of this Agreement. If you do not have authority to agree to the terms of this Agreement on behalfof the Customer, or do not accept the terms of this Agreement on behalf of the Customer, immediately
cease any further attempt to use this Service Offering for any purpose.
These Terms of Service and any Service Offering Documentation together constitute the “Agreement.” Customer
may purchase the Service Offering from Service Provider under the Terms of Service. Capitalized terms usedin these Terms of Service are defined throughout these Terms of Service and in Section 14 (“Definitions”).
1.

THE SERVICE OFFERING.

1.1
Generally. Service Provider may deliver the Service Offering with the assistance of Service Provider’saffiliates and suppliers, including but not limited to any secure hosting, storage, and processing services Service
Provider may engage to meet and comply with security laws and/or requirements. Such affiliates or suppliers
are collectively referred to herein as “Affiliates.” Service Provider will remain responsible to Customer for deliveryof the Service Offering.
1.2

Use of the Service Offering.

1.2.1 Customer may use the Service Offering only (a) during the Subscription Term, (b) for Customer’s
own internal use and (c) in accordance with the Agreement. To use the Service Offering Customer may berequired to register and set up an authorized account with Login Credentials. Customer must keep Customer
registration information accurate and complete during the term of the Agreement.
1.2.2 Customer is responsible for (a) any use of the Service Offering that occurs under Customer’s
Login Credentials, (b) Customer’s Content, and (c) Customer’s Users’ compliance with the Agreement. If
Customer becomes aware of any User’s violation of the Agreement, Customer must promptly suspend that
User’s access to the Service Offering. If Customer becomes aware that any of Customer’s Content, or any ThirdParty Content, violates Section 3.1 (“General Restrictions”) or Section 3.2 (“Content Restrictions”), Customer

must promptly remove that Content or suspend use of that Third-Party Content. If Customer believes Customer’s
account has been compromised, including any unauthorized access to or use or disclosure of any accountinformation, passwords, user names, or Login Credentials, Customer must notify Service Provider as soon as
possible. Customer may not impersonate another Archer user or provide false identity information to gain accessto or use the Service Offering.
1.2.3 If Service Provider or an Affiliate reasonably believes a problem with the Service Offering may be
attributable to Customer’s Content or to Customer’s use of the Service Offering, Customer must promptly
cooperate with Service Provider or an Affiliate to identify the source of the problem and to resolve the problem.
1.3
Third-Party Content. Where available, Customer may use Third-Party Content, at Customer’s option.
If Customer chooses to use Third-Party Content, Customer is responsible for complying with any terms that arepresented to Customer when Customer accesses that Third-Party Content, including any separate fees or
charges imposed by the provider of that Third-Party Content. Third-Party Content is available “AS IS” without
indemnification, support (unless otherwise specified), or warranty or condition of any kind. Service Provider may
suspend or terminate provision and hosting of any Third-Party Content at any time, and that suspension or
termination will not be deemed a material, detrimental change.
1.4

Open Source Software.

1.5.1 Customer may receive open source software when Customer uses the Service Offering. The open
source software Customer receives, as well as open source software that Customer may interact with whenusing the Service Offering and that Service Provider is required to disclose to Customer, is made available either(i) accompanying the Service Description, or (ii) as Service Provider may otherwise make generally available toits customers.
1.5.2 Open source software embedded in the Service Offering will not be deemed to be “Third-Party
Content”. All provisions in these Terms of Service applicable to the Service Offering (e.g., warranty, liability,
indemnification, and other obligations) will control as between Customer and Service Provider over any
conflicting terms set forth in any open source software license otherwise applicable to that open source software.
1.5
Optional Feedback. Customer may provide comments and suggestions regarding a Service Offering,but Customer is not required to do so. If Customer provides comments or suggestions, Service Provider may
use that feedback without restriction, and Customer hereby irrevocably assigns to Service Provider all right, title,
and interest in and to that feedback. Subject to the preceding sentence regarding any feedback Customer
provides, providing any comments and suggestions does not grant us any rights in Customer’s Content or
Customer’s intellectual property.
1.6
Required Disclosures. If Service Provider is required by a subpoena, court order, agency action, or
any other legal or regulatory requirement to disclose any of Customer’s Content, Service Provider will provide
Customer with notice and a copy of the demand as soon as practicable, unless Service Provider is prohibitedfrom doing so pursuant to applicable law. If Customer requests, Service Provider will, at Customer’s expense,take reasonable steps to contest any required disclosure. Service Provider will limit the scope of any disclosure
to only the information Service Provider is required to disclose.
2.

DATA PROTECTION AND SECURITY.

2.1
Service Provider’s Obligations. Service Provider is responsible for providing security for the Service
Offering. If Service Provider becomes aware of any Security Incident it shall: (a) notify Customer without undue
delay; (b) take action to investigate the Security Incident and to identify, prevent, and mitigate the effects of the
Security Incident; and (c) not release or publish any filing, communication, notice, press release, or reportconcerning the Security Incident without Customer’s prior written approval.
2.2
Customer’s Obligations. Customer is solely responsible for ensuring that the Service Offering and its
security is appropriate for Customer’s Content and Customer’s intended use. Customer is responsible for taking
and maintaining appropriate steps to protect the confidentiality, integrity, and security of Customer’s Content.
Those steps include (a) controlling access Customer provides to Customer’s Users, (b) configuring the Service
Offering appropriately, (c) ensuring the security of Customer’s Content while it is in transit to and from the Service

Offering, (d) using encryption technology to protect Customer’s Content, and (e) backing up Customer’s Content.
Customer is responsible for providing any necessary notices to Users and obtaining any legally requiredconsents from Users regarding their use of the Service Offering.
3.

ACCEPTABLE USE.

3.1
General Restrictions. Customer must not: (a) resell or sublicense the Service Offering; (b) reverse
engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of
the software included with the Service Offering, or any part thereof; (c) use the Service Offering (i) in a way
prohibited by law, (ii) to violate any rights of others, (iii) to try to gain unauthorized access to or disrupt or harm
the Service Offering or any other service, device, data, account, or network of Service Provider or Service
Provider’s customers or suppliers, (iv) in a way intended to work around the Service Offering’s technicallimitations, recurring fees calculation, or usage limits, (v) for High Risk Activities; (vi) use the Service Offering tocreate or enhance a competitive offering or for any purpose which is competitive to Service Provider; (vii) performor fail to perform any other act which would result in a misappropriation or infringement of Service Provider’sintellectual property rights in the Service Offering; (viii) to attempt to probe, scan or test the vulnerability of theService Offering, or a system, account or network of Service Provider or any of Service Provider’s customers or
suppliers; (ix) to transmit unsolicited bulk or commercial messages or intentionally distribute worms, Trojan
horses, viruses, corrupted files or any similar items; or (x) to restrict, inhibit, interfere or attempt to interfere withthe ability of any other person to use or enjoy the Service Offering or a user’s network, or cause a performancedegradation to any facilities used to provide the Service Offering.
3.2
Content Restrictions. Customer must not upload into the Service Offering any Content that: (a) may
create a risk of harm or any other loss or damage to any person or property; (b) may constitute or contribute toa crime or a tort; (c) includes any data that is illegal, unlawful, harmful, pornographic, defamatory, infringing, orinvasive of personal privacy or publicity rights; (d) contains any data that Customer does not have a right toupload into the Service Offering; or (f) is otherwise prohibited as specified in the Agreement
4.

INTELLECTUAL PROPERTY OWNERSHIP.

4.1
Ownership of Service Offering. As between Customer and Service Provider, Service Provider owns
all right, title, and interest in and to the Service Offering and any related Service Provider Software, including all
improvements, enhancements, modifications, and derivative works of them, and all Intellectual Property Rights
in all of them. Customer’s rights to use the Service Offering are limited to those expressly granted in theAgreement. No other rights are implied with respect to the Service Offering, any related Service Provider
Software, or any related Intellectual Property Rights.
4.2
Ownership of Customer’s Content. As between Customer and Service Provider, Customer retains allright, title and interest in and to Customer’s Content and all Intellectual Property Rights in Customer’s Content.
Service Provider’s rights to access and use Customer’s Content are limited to those expressly granted in theAgreement.
5.

ORDERS, PAYMENT, AND TAXES.

5.1

Orders Generally.

5.1.1 The description of the Service Offering or Service Provider Software, and related pricing are asstated in a quote to Customer from Archer. Each quote is valid for the time period specified thereon. Customer
may order the items on such quote by (a) issuing a purchase order to Archer that references such quote; or (b)with the prior approval of Archer (i) signing such quote and returning it to Archer; or (ii) sending an email or otherwriting to Archer referencing and ordering the items on such quote. Customer’s order is accepted by Archer (A)issuing an e-mail or other written communication to Customer accepting such order; or (B) or commencing
performance of the applicable Services. Customer must pay all charges Customer incurs for Customer’s use of
the Service Offering.
5.1.2 All Orders are subject to the terms of the Agreement, including all applicable laws and regulations,and are not binding until Service Provider accepts them. An Order will be deemed accepted when Service
Provider delivers Customer’s Login Credentials to the email address associated with the account, or otherwise
as set forth in the Service Description. Service Provider is not required to provide the Service Offering toCustomer until Customer provides to Service Provider all information Service Provider requires for processing

Customer’s Order and provisioning the Service Offering for Customer. All Orders are non-refundable and noncancellable except as expressly provided in the Agreement. Any refunds to which Customer is entitled under the
Agreement will be remitted to Customer or if Customer purchases the Service Offering through an authorized
reseller to the Service Provider channel partner from which Customer purchased Customer’s entitlement to use
the Service Offering.
5.1.3 If Customer pays for a Service Offering through a credit card, where credit card payment isavailable, Customer may be subject to any additional terms presented to Customer by a third-party credit card
payment processor, which may be the merchant of record for that transaction.
5.2
Direct Orders. This Section 5.2 applies only to Orders directly with Service Provider. If Customer
purchases an entitlement to the Service Offering through a Service Provider authorized reseller, different terms
regarding invoicing, payment, and taxes may apply.
5.2.1
Unless Customer and Service Provider agree otherwise, (a) charges Customer incurs for using
the Service Offering will be as stated on the accepted quote or Order provided by Service Provider and (b)Customer must pay all charges no later than 30 days after the date of invoice.
5.2.2
Service Offering fees are exclusive of Taxes. Customer must pay or reimburse Service Provider
for all Taxes arising out of the transactions contemplated by the Agreement, except for taxes based on Service
Provider’s net income, gross revenue or employment obligations. Service Provider shall provide Customer witha valid invoice if VAT is chargeable in respect of any amount payable under this Agreement. Customer may
qualify for tax exemptions from time to time in which case Service Provider requests that Customer timely provide
it with a valid certificate of exemption or other appropriate documentary proof of exemption. If Customer isrequired to pay or withhold any Tax for payments due under the Agreement, where Service Provider is resident
in a different country than Customer, Customer must gross up Customer’s payments to Service Provider so that
Service Provider receives the amount it would have received if such deduction or withholding tax were notrequired where legally permitted. If Customer is required to pay any Taxes to a taxing authority, Customer mustalso provide documentation to Service Provider showing that Customer paid those Taxes. Service Provider will
not be responsible to Customer for any penalties, interest or other charges arising from any act or omission by
Customer with respect to tax compliance.
6.

TEMPORARY SUSPENSION.

6.1
Generally. Service Provider may, at its option, suspend Customer’s use of any Service Offering if: (a)Customer is in breach of the Agreement (including failure to make timely payment) and does not cure that breach
within 10 days after Service Provider notifies Customer of that breach; (b) Service Provider believes that
Customer’s use of the Service Offering poses a security risk to the Service Offering or to other users of theService Offering; or (c) Service Provider suspects fraud or abuse. Except as provided herein, Service Provider
will give Customer fifteen (15) days’ notice before suspending Customer’s use of the Service Offering if permitted
by law or unless Service Provider reasonably determines that providing notice presents a risk of harm to theService Offering, to other users of the Service Offering, or to any person or property, in which case Service
Provider will notify Customer as soon as feasible or permitted. Service Provider will suspend Customer’s accessonly to the Service Offering that is the subject of the issue giving rise to the suspension. Service Provider willpromptly reinstate Customer’s access to the Service Offering once Service Provider has determined that theissue causing the suspension has been resolved.
6.2
Effect of Suspension. Customer will remain responsible for all fees incurred before and during any
suspension. Customer will not be entitled to any service credits under the applicable Service Level Agreementthat Customer might have otherwise accrued during any suspension.
7.

TERMINATION.

7.1
Generally. Customer has the right to use the Service Offering during the applicable Subscription Term.
Customer may stop using a Service Offering at any time, but Customer will remain liable for all fees and charges
otherwise due during the applicable Subscription Term.
7.2

Termination for Cause.

7.2.1 Service Provider may, at its option, terminate the Agreement effective immediately upon written
notice to Customer (a) if Service Provider has the right to suspend under Section 6.1 (“Temporary Suspension;

Generally”), (b) Customer commits a material breach of the Agreement that cannot be cured, or (c) to comply
with applicable law.
7.2.2 Either party may terminate the Agreement for cause if the other breaches the terms and fails tocure within thirty (30) days after receipt of the other party’s written notice thereof.
7.3
Termination for Insolvency. Either Customer or Service Provider may terminate the Agreement
effective immediately upon sending the other party notice if that party: (a) becomes insolvent, admits in writing
its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or (b) becomessubject to control of a trustee, receiver, or similar authority, or to any bankruptcy or insolvency proceeding.
7.4

Effect of Termination.

7.4.1 Upon termination of the Agreement for any reason: (a) Customer must stop using the Service
Offering, and (b) Customer must return or, if Service Provider requests, destroy, any Confidential Information ofService Provider or its suppliers in Customer’s possession or under Customer’s control (other than informationthat must be retained pursuant to law). Deletion of any Customer Content remaining in the Service Offering will
occur as specified in the applicable Service Description. As between Customer and Service Provider, Customer
is responsible for ensuring that Customer has necessary copies of all Customer’s Content prior to the effective
date of any termination.
7.4.2 Any provision that, by its nature and context is intended to survive termination or expiration of theAgreement, will survive.
7.4.3 Except to the extent Customer or Service Provider are permitted to terminate the Agreement
pursuant to Sections 7.2 (“Termination for Cause”), or 10.2 (“Indemnification by Service Provider”), any
termination of the Agreement will not entitle Customer to any refunds, credits, or exchanges, and Customer will
be liable for all fees for the entire Subscription Term. If Service Provider terminates the Agreement prior to
expiration of a Subscription Term pursuant to Section 7.2, Customer will be liable for all fees due with respect to
the Service Offering for the remainder of the then-current Subscription Term.
8.

WARRANTIES.

8.1
Limited Warranty: Duration and Remedy. Service Provider warrants that the Service Offering will
perform substantially in accordance with the Agreement, provided that the Service Offering has at all times beenused in accordance with the Agreement.
8.2
Disclaimer. OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER, FOR ITSELF AND ON BEHALF OF ITSSUPPLIERS, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY,INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROMCOURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE SERVICE OFFERING AND
TO ALL MATERIALS OR SERVICES PROVIDED TO CUSTOMER UNDER THE AGREEMENT, INCLUDINGANY THIRD-PARTY CONTENT. SERVICE PROVIDER AND SERVICE PROVIDER’S SUPPLIERS DO NOTWARRANT THAT THE SERVICE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS ORERRORS, OR THAT THE SERVICE OFFERING WILL MEET (OR IS DESIGNED TO MEET) CUSTOMER’S
BUSINESS REQUIREMENTS.
9.

INDEMNIFICATION.

9.1
Indemnification by Customer. Subject to the remainder of this Section 10.1, Customer will (a) defend
Service Provider against any Third-Party Claim; and (b) indemnify Service Provider from all fines, damages, andother costs resulting from a final award, judgment, or order of a court of competent jurisdiction or a government
agency arising out of a Third-Party Claim. Service Provider will: (i) provide Customer with notice of any ThirdParty Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice
will relieve Customer of Customer’s indemnification obligations only to the extent that the delay prejudices
Customer), and (ii) reasonably cooperate in response to Customer’s requests for assistance. Customer will havesole control over the defense of any Third-Party Claim. Customer may not, without Service Provider’s prior writtenconsent, settle any Third-Party Claim if that settlement obligates Service Provider to admit any liability to make

any monetary payment, or to undertake any material obligation; or if that settlement would affect any Service
Offering or Service Provider business practices or policies.
9.2

Indemnification by Service Provider; Infringement Claims.

9.2.1 Subject to the remainder of this Section 10.2, Service Provider will: (a) defend Customer against
any Infringement Claim; and (b) indemnify Customer from all fines, damages, and costs resulting from a final
award, judgment, or order of a court of competent jurisdiction or a government agency, with regard to any
Infringement Claim. The foregoing obligations are applicable only if Customer: (i) provides Service Provider with
notice of any Infringement Claim within a reasonable period after learning of the claim (provided that any delay
in providing the notice will relieve Service Provider of its indemnification obligations only to the extent that thedelay prejudices Service Provider); (ii) allows Service Provider to have sole control over the defense of theInfringement Claim; and (iii) reasonably cooperates in response to Service Provider’s requests for assistancewith regard to the Infringement Claim. Service Provider will not, without Customer’s prior written consent, enter
into any settlement of any Infringement Claim that obligates Customer to admit any liability to make any
unreimbursed monetary payment, or to undertake any material obligation.
9.2.2 If the Service Offering becomes or in Service Provider’s opinion is likely to become the subject ofan Infringement Claim, Service Provider may at its option and expense: (a) procure the rights necessary for
Customer to keep using the Service Offering; (b) modify or replace the Service Offering to make it non-infringing
without materially reducing its functionality; or (c) terminate the Agreement and refund any prepaid fees, prorated
for the remaining portion of the then-current Subscription Term.
9.2.3 Service Provider will have no obligation under this Section 10.2 or otherwise with respect to any
Infringement Claim based on: (a) combination of the Service Offering with non-Service Provider products orcontent, including any of Customer’s Content and/or any Third-Party Content; (b) use of the Service Offering fora purpose or in a manner not permitted by the Agreement, or use after Service Provider notifies Customer tocease such use due to a possible or pending Infringement Claim; (c) any modification to the Service Offering
made without Service Provider’s express written approval; (d) any modifications Service Provider makes to theService Offering pursuant to instructions, designs, specification, or other information Customer provides to us;(e) Customer’s own services (including Infringement Claims where the damages sought are based on revenues
from Customer’s own services); (f) any data or information Customer or a third party records on or utilizes inconnection with the Service Offering; (g) any claim that relates to open source software or freeware technology,
Third Party Products, or any derivative or other adaptation thereof; or (h) any Service Offering provided on a nocharge basis.
9.2.4 This Section 10.2 states Customer’s sole and exclusive remedy and Service Provider’s entire
liability for any Infringement Claims.
10.

LIMITATION OF LIABILITY.

10.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SERVICEPROVIDER BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE
SERVICE OFFERING, OR LOSS OF CONTENT FOR ANY REASON INCLUDING POWER OUTAGES,SYSTEM FAILURES, OR OTHER INTERRUPTIONS (SUBJECT TO SERVICE PROVIDER’S OBLIGATIONSUNDER THE APPLICABLE SERVICE LEVEL AGREEMENT), LOSS OF REVENUE, LOSS OF GOODWILL,
BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE,
PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF
WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.2 Cap on Monetary Liability. SERVICE PROVIDER’S LIABILITY FOR ANY CLAIM UNDER THE
AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TOSERVICE PROVIDER FOR CUSTOMER’S USE OF THE PARTICULAR SERVICE OFFERING GIVING RISE
TO THE CLAIM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE
LIMITATION OF LIABILITY IN THIS SECTION 11.2 WILL NOT APPLY TO (i) SERVICE PROVIDER’S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2.1 OF THESE TERMS OF SERVICE OR (ii) ANY
LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

10.3

Further Limitations.

10.3.1 Service Provider’s suppliers have no liability of any kind under the Agreement. Customer may notbring a claim directly against any of them under the Agreement. Service Provider’s liability with respect to any
Third-Party Content used or made available as part of a Service Offering is subject to this Section 11.
10.3.2 Customer may not bring a claim under the Agreement more than eighteen (18) months after thecause of action arises.
11.

CONFIDENTIAL INFORMATION.

11.1 Protection. Either party (the “recipient”) may use Confidential Information of the other party (the“discloser”) disclosed to it in connection with the Agreement solely to exercise its rights and perform its
obligations under the Agreement or as otherwise permitted by the Agreement. Customer and Service Provider
will each use reasonable care to protect that Confidential Information in the same manner as each party protects
its own Confidential Information of a similar nature, but in any event with not less than reasonable care. The
recipient may disclose the discloser’s Confidential Information only to the recipient’s employees, or to third
parties, who have a need to know the Confidential Information for purposes of the Agreement, and who areunder a duty of confidentiality no less restrictive than as specified in this Section 12. The recipient may also
disclose the discloser’s Confidential Information in accordance with the procedures set forth in Section 1.8(“Required Disclosures”).
11.2 Exceptions. The recipient’s obligations under Section 12.1 with respect to any of the discloser’s
Confidential Information will terminate if the recipient can show by written records that the information: (a) was,at the time of disclosure by the discloser, already rightfully known to the recipient without any obligation ofconfidentiality; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without
any confidentiality restrictions; (c) at the time of disclosure is, or through no fault of the recipient has become,generally available to the public; or (d) was independently developed by the recipient without access to or useof the discloser’s Confidential Information.
11.3

Injunctive Relief. Nothing in the Agreement limits either party’s ability to seek equitable relief.

12.

GENERAL.

12.1 Assignment. Customer may not assign or transfer the Agreement, in whole or in part, by operation oflaw or otherwise, without Service Provider’s prior written consent. Any attempted assignment or transfer of theAgreement without Service Provider’s consent will be void and will be a breach of the Agreement. Subject tothese limitations, the Agreement will bind and inure to the benefit of the parties and their respective successors
and assigns.
12.2 Notices. Any notice by Service Provider to Customer under the Agreement will be given: (a) by email tothe email address associated with Customer’s account, if Customer has subscribed to this method of receiving
notices, or (b) by posting on either the Service Offering portal or Service Provider’s generally available customer
access portal. Customer must direct legal notices or other correspondence to Service Provider’s physicaladdress and the legal notices email address identified above (if any).
12.3 Waiver. Waiver of a breach of any provision of the Agreement will not constitute a waiver of any later
breach of that provision, or waiver of a breach of any other provision.
12.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining
provisions of the Agreement will remain in force to the extent feasible.
12.5 Compliance with Laws. Customer and Service Provider must each comply with all laws applicable tothe actions contemplated by the Agreement.
12.6 Export Control. Customer acknowledges that the Service Offering is of United States origin, is provided
subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export”
regulations), and may be subject to the export control laws of any other applicable country. Customer represents
and warrants that: (a) Customer, and any User, are not, and are not acting on behalf of, (i) any person who is a
citizen, national, or resident of, or who is controlled by, the government of any country to which the United States
has prohibited export transactions; or (ii) any person or entity listed on the U.S. Treasury Department list ofSpecially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List
or Entity List, or any similar designated persons list published for the jurisdiction in which the applicable data
center is located; (b) Customer, and any User, will not permit the Service Offering to be used for any purposesprohibited by law, including any prohibited development, design, manufacture, or production of missiles or
nuclear, chemical, or biological weapons; (c) no Content will be classified or listed on the United States Munitions
list or similar list published for the jurisdiction in which the applicable data center is located, or contain defense
articles, defense services, or ITAR-related data; (d) no Content will require an export license or is restrictedunder applicable export control laws from export to any country where Service Provider’s or Service Provider’sservice providers maintain facilities or personnel; and (e) Customer, and any User, are not subject, either directly
or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole
or in part, Customer’s United States export privileges. Customer must notify Service Provider promptly if
Customer or any User becomes subject to any order of that type. For purposes of sales to government entities
in the United States, any Service Offering and the accompanying Service Offering Documentation are deemed
to be “commercial computer software” and “commercial computer software documentation”, respectively,
pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification,
reproduction, release, performing, displaying, or disclosure of any Service Offering or the Service Offering
Documentation, by or for the U.S. Government will be governed solely by the terms and conditions of theAgreement, in conjunction with statutes, regulations, and the terms of the GSA Schedule, and in accordancewith the provisions of Section 13.13 (“Order of Precedence”). Customer agrees to indemnify and hold Archer
harmless for any liability, loss, damage, cost, expense, or penalty arising from Customer’s non-compliance with
the AECA, ITAR, or the provisions of this Section.
12.7 Force Majeure. Neither Customer nor Service Provider will be liable for any delay or failure to perform
its obligations under the Agreement, except for Customer’s payment obligations, due to any cause beyond
Customer’s or Service Provider’s reasonable control including labor disputes or other industrial disturbances,
systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature,embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.8 Construction. The headings of sections of these Terms of Service are for convenience and are not for
use in interpreting these Terms of Service. As used in these Terms of Service, the word “including” means“including but not limited to”.
12.9 Language. The Agreement is in English, and the English language version governs any conflict with atranslation into any other language.
12.10 Governing Law. This Agreement is governed by the laws of the State of Delaware and the federal lawsof the United States. Conflict of law rules are expressly disclaimed. The U.N. Convention on Contracts for theInternational Sale of Goods does not apply.
12.11 Third Party Rights. Other than as expressly provided in the Agreement, the Agreement does not create
any rights for any person who is not a party to it, and only persons who are parties to the Agreement may enforce
any of its terms or rely on any exclusion or limitation contained in the Agreement.
12.12 Independent Parties. Service Provider and Customer are independent contracting parties, and theAgreement will not be construed to create a partnership, joint venture, agency, or employment relationshipbetween Service Provider and Customer. Neither Customer nor Service Provider, nor any of Service Provider’srespective affiliates, officers, directors, or employees, is an agent of the other for any purpose, nor has theauthority to bind the other.
12.13 Order of Precedence. The terms of the Agreement will supersede any conflicting or additional terms
and conditions of any purchase order or other purchasing-related document issued by Customer relating to any
Order for the Service Offering. In case of conflict between a Service Description and the terms of this Agreement,
the Service Description shall take precedence.
12.14 Entire Agreement. The Agreement as it may be modified from time to time is the entire agreement
between Customer and Service Provider regarding its subject matter. The Agreement supersedes all prior orcontemporaneous communications, understandings and agreements, whether written or oral, between
Customer and Service Provider regarding its subject matter.
13.

DEFINITIONS.

“Account Information” means information about Customer that Customer provides to Service Provider inconnection with creation or administration of Customer’s account, including names, usernames, phone numbers,
email addresses, and billing information associated with Customer’s account.
“Confidential Information” means Customer’s Login Credentials, and any non-public technical, business, orother information or materials disclosed or otherwise made available by either Customer or Service Provider tothe other party regarding the Agreement or the Service Offering, that are in tangible form and labeled“confidential” or the like, or are provided under circumstances reasonably indicating confidentiality. Customer’s
Confidential Information does not, for purposes of the Agreement, include Customer’s Content. If Customer
discloses Customer’s Content to Service Provider or if Service Provider accesses Customer’s Content aspermitted by the Agreement, including for purposes of providing support to Customer, Service Provider will use
the same standard of care with respect to that data as Service Provider uses to protect its own Confidential
Information.
“Content” means any data, including all text, sound, video, or image files, and software (including machine
images), or other information.
“Customer’s Content” means Content uploaded into the Service Offering for processing, storage or hosting, by
Customer or by any User, but does not include (i) Third-Party Content, or (ii) Account Information.
“Data Processing Addendum” means the then-current version of the Service Provider’s Data Processing
Addendum, if applicable.
“High Risk Activities” means workloads or applications used to control or operate activities with a likelihood of
injury or death, including but not limited to controlling aircraft or other modes of human mass transportation,
nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponrysystems, or any similar scenario where failure could lead to personal injury, death, or environmental damage.
“Infringement Claim” means any claim by a third party that the Service Offering (excluding Third Party Products
and Services, and open source software) infringes any patent, trademark, or copyright of that third party, or
misappropriates a trade secret of that third party (but only to the extent that the misappropriation is not a resultof Customer’s actions), under the laws of: (a) the United States, (b) Canada, (c) European Economic Area
member states, (d) Australia, (e) New Zealand, (f) Japan, or (g) the People’s Republic of China, to the extent
that Customer’s instance of the Service Offering is provisioned in a data center located in the applicable country(e.g., the laws of Japan would control regarding an Infringement Claim based on a Service Offering instanceprovisioned in a data center located in Japan).
“Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks,
service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether
registered or unregistered.
“Law” includes any statute, ordinance, regulation, or governmental requirement, order, or decree.
“Login Credentials” means any passwords, authentication keys, or security credentials that enable Customer’s
access to and management of the Service Offering.
“Order” means the ordering document, that evidences Customer’s purchase of a Service Offering.
“Personal Data” means any information that can identify, directly or indirectly, a person individually, and that is
protected as “personal data,” “personally identifiable information,” or a comparable term under applicable data
privacy and security laws, regulations, and directives.
“Product Notice” means the notice by which Archer informs Customer of product-specific use rights andrestrictions, warranty periods, warranty upgrades and maintenance (support) terms. Product Notices may bedelivered in an Archer quote, otherwise in writing and/or a posting on the applicable Archer website, currently
located at Product Notice .
“Security Incident” means any breach of security leading to, or reasonably believed to have led to, the accidental
or unlawful destruction, loss, or alteration of, or unauthorized disclosure or access to Personal Data.
“Service Description” means the then-current version of the Service Description for the particular Service
Offering.

“Service Level Agreement” means the then-current version of the Service Level Agreement for the particularService Offering, found in the applicable Service Description. Certain Service Offerings may not have a Service
Level Agreement.
“Service Offering” means the Service Provider cloud service offering specified in Customer’s Order.
“Service Offering Documentation” means the specific Service Description, any applicable Product Notice,
and/or Service Level Agreement (if any) for the Service Offering; all as revised by Service Provider from time totime.
“Service Provider Software” means the software programs listed in Service Provider’s commercial price list.
“Subscription Term” means the initial term of Customer’s authorized use of the Service Offering, as set forth in
the applicable quote or ordering document, together with any renewal terms (if applicable, as may be set forth in
the Service Description). The initial term begins on the earlier of: (i) the date on which Customer starts using theService Offering, (ii) the date Customer completes the registration process, (iii) the date on which Service
Provider first provides Customer with access to the Service Offering, or (iv) as otherwise specified in the Orderor in the applicable Service Description. For purposes of any on-demand Service Offering, “Subscription Term”
means the period during which Customer is using the Service Offering, for which Customer will be billed, as
specified in the applicable Order, and as may be further defined in the Service Description.
“Taxes” means any sales, VAT (value-added tax), GST (goods and services tax), use, excise, and other similartaxes (other than income taxes), export and import fees, customs duties, and similar charges imposed by afederal government or other federal authority.
“Third-Party Claim” means any third-party claim or demand arising from or relating to (i) Customer’s Content,(ii) Customer’s use of any Service Offering in violation of the Agreement, or (iii) Customer’s combination of theService Offering with non-Service Provider products or content, including any Customer Content and/or any
Third-Party Content.
“Third-Party Content” means Content provided by a third party, that interoperates with the Service Offering,
including open source software, but that is not embedded in or required for use of the Service Offering. As an
example, Third-Party Content may include an application that is listed on a marketplace or in a catalog.
Third-Party Products and Services” means products (whether hardware, software, firmware, or otherwise) or
services, where such products or services are not branded with a trademark or service mark owned by Supplieror its affiliates.
“User” means any person who is authorized to access or use the Service Offering or Customer’s Content directly
under Customer’s Login Credentials, and may include Customer’s employees, contractors, service providers,and other third parties.

Attachment 1: Service Description – Archer FedRAMP

Internal Use

Attachment 1
Service Description – Archer FedRAMPThis Service Description governs the performance by Archer of certain services, as described in theTerms of Service and further described herein, in relation to the Service Offering purchased by Customer
generally known as “Archer FedRAMP” under the Agreement. Notwithstanding anything to the contraryin the Agreement, in the event of a conflict between the terms of the Agreement and this Service
Description, the terms of this Service Description shall prevail solely with respect to the subject matterhereof. Capitalized words used in this Service Description and not expressly defined herein will have themeaning stated in the Agreement.
The Archer FedRAMP Service Offering (as defined below) is performed in an environment which
segregates Customer Content utilizing separate directories, databases, logical networks, and technology
stacks such that there is no co-mingling of Customer Content. Service levels and operational procedures
are standardized for all customers consistent with controls required for a FedRAMP High (DOD IL4)ATO.
1.

SCOPE OF SERVICES.

During the Term, Archer will ensure the services described herein are provided to Customer inaccordance with the Agreement and any applicable service levels in order to allow Customer to accessand use the Service Offering. Customer’s access and use of the Service Offering will be subject to all
those restrictions stated in the Agreement.
2.

SERVICE OFFERING PACKAGES.

The Service Offering is offered in several package levels. Customer’s accepted order for the Service
Offering will state which package is selected. Customer’s purchase will include a base package,
Customer Success Manager (“CSM”), and any additional use cases, On-Demand Applications (“ODAs”),
storage, or instances as specified on the quote or ordering document.

3.

CUSTOMER RESPONSIBILITIES.

Customer will provide any cooperation, access, and detailed information reasonably necessary to
implement and deliver the Service Offering, including, where applicable, one (1) employee who has
substantial computer system, network management and project management experience satisfactory toArcher to act as project manager and as a liaison between Archer and Customer. Archer will be excusedfrom its failure to perform any obligation under this Service Description to the extent such failure iscaused by Customer’s delay or failure to perform its responsibilities under this Agreement. Customer
shall use reasonable and appropriate safeguards to protect its Customer Content (as defined below).

HB: 4854-6594-9567.5

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