Version Version 1.54 - January, 2023 Based on the Order Form for SaaS-Services (hereinafter the "Order Form") provided by Archlet AG (hereinafter the "Provider" or individually the "Party" and together with the Client the "Parties"), the client (hereinafter the “Client” or individually the "Party" and together with the Provider the "Parties") agrees to be bound, without reservation, to the following Archlet SaaS Terms and Conditions (hereinafter “ASTC”).
The Order Form, these ASTC and the annexes mentioned herein are all an integral part of the agreement between the Provider and the Client (hereinafter the "Agreement"). By signing the Order Form, the Parties agree to be bound by these ASTC. If the Client uses the Product (as defined below in Section 1.1.1. of the ASTC) without signing the Order Form, then the Client agrees that the ASTC and the Order Form govern the Client's use of the Product. 1. Services 1.1. General 1.1.1. The Provider operates a software (hereinafter "Software") and an application (hereinafter "App" and together with the Software the "Product") as described in the Order Form and in connection therewith provides to the Client certain Software-as-a-Service services (hereinafter "SaaS-Services") as specified in the Order Form and in these ASTC. 1.1.2. As part of its SaaS-Services, the Provider: (a) sets up its Product as specified in Annex 1; (b) operates the Product and provides the support services according to the Service Level Agreements ("SLA") in Annex 2 (hereinafter the "Support Services"); (c) grants the Client access to the Software to use the Product and to receive the Support Services. 1.1.3. The SaaS-Services are subject to these ASTC and to the timely payment of the fees set forth in in the Order Form (hereinafter the "Fees") by the Client. 1.2. Support Services and Upgrades 1.2.1. During the Term (as defined below in Section 10 of the ASTC) the Provider will provide the Support Services to the Client and may apply Upgrades (as defined below in Section 5 of Annex 2) to the Product, in accordance with the SLA set out in Annex 2.
2. Client Rights and Obligations
2.1. Use of Services by Client
2.1.1. Subject to the Client's compliance with the Agreement and to the Client paying the Fees, the Provider grants to the Client a worldwide, non-exclusive, non-transferable, and limited licence to use the Product for the purposes specified in the Order Form (hereinafter the "Permitted Purpose of Use") during the Term of the Agreement.
2.1.2. The use of the Product by the Client shall be subject to the following licensing provisions: (a) the Client may only use the Product for the Permitted Purpose of Use; (b) the Client must not and agrees not to: (i) copy or reproduce the Product or any part of it other than in accordance with the licence granted in the Order Form and/or these ASTC; (iI) sell, sub-license, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Product or any part of it; (iii) modify, alter, adapt, translate or edit, or create derivative works of the Product or any part of it; (iv) reverse engineer, decompile, disassemble the Product or any part of it (except as mandated by applicable law); (v) use the Product other than in accordance with the Provider's instructions; (vi) use the Product in any way that is unlawful, illegal, fraudulent or harmful or use it in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; (vii) use the Product in any way that causes, or may cause, damage to the Product or impairment of the availability or accessibility of it, or any of the areas of, or services on, the Product; or (viii) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Product for the purposes of preventing unauthorised use. (c) the Product may only be used by the employees, agents and sub-contractors of the Client; (d) the Client must not and agrees not to sub-license its right to access and use the Product or allow any unauthorised person to access or use the Product.
2.1.3. For the avoidance of doubt, the Client has no right to access the source code of the Product directly or indirectly, either during or after the Term.
2.1.4. The Client shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Product using the Client's account.
2.1.5. It is the Client's responsibility to ensure and comply with internal policies, union contracts as well as legal requirements of the respective countries regarding the privacy protection of individual employees.
2.1.6. The Client agrees to ensure that access to the Product is strictly restricted to persons authorised to use it.
3. Fees
3.1. The Client agrees to pay the Fees as set forth in the Order Form.
3.2. If the Client does not timely pay any amount properly due to the Provider, the Provider may charge the Client interest on the overdue amount at the rate of 5% per year from time to time (which interest will accrue daily and be compounded quarterly).
3.3. The Provider may suspend access to the Product and the provision of the SaaS-Services if any amounts due to be paid by the Client to the Provider are overdue by more than thirty (30) days. In the case of a suspension of the SaaS-Service, the Client remains fully obligated to pay the Fees and the Client is not entitled to claim any refunds or damages.
4. Intellectual Property All intellectual property rights pertaining to the SaaS-Services and the Product shall, as between the Parties, be the exclusive property of the Provider. This includes intellectual property rights in Customisations.
5. Data Ownership
5.1. The Client is the owner of the data and contents it processes via the Product.
5.2. The Client acknowledges that any data models and algorithms generated by the Provider based on the use of the SaaS-Service by the Client and on Client Data are the sole property of the Provider and that the Provider can use the anonymized data of the Clients at its free discretion for any purposes.
6. Warranties
6.1. The Client warrants to the Provider that: (a) it has the legal right and authority to enter into and perform its obligations under the Agreement; (b) it will use the SaaS-Services and the Product strictly in compliance with any law and the conditions set forth in the Agreement.
6.2. The Provider warrants to the Client that: (a) it has the legal right and authority to enter into and perform its obligations under the Agreement; (b) it will perform its obligations under the Agreement with reasonable care and skill.
6.3. The Client acknowledges that: (a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Product will be wholly free from such defects, errors and bugs; and (b) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, the Provider gives no warranty or representation that the Product will be entirely secure; and (c) the Provider does not warrant or represent that the Product will be compatible with any application, program or software not specifically identified as compatible in Annex 1.6.4. All of the Parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the provisions of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be made or implied into the Agreement.
7. Limitations and exclusions of liability
7.1. Nothing in the agreement will: (a) limit or exclude the liability of a Party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a Party for fraud or fraudulent misrepresentation by that Party; (c) limit any liability of a Party in any way that is not permitted under applicable law; or (d) exclude any liability of a Party that may not be excluded under applicable law.
7.2. The Provider will not be liable: (a) in respect of any loss of profits, income, revenue, use, production or anticipated savings; (b) for any loss of business, contracts or commercial opportunities; (c) for any loss of or damage to goodwill or reputation; (d) in respect of any loss or corruption of any data, database or software; (e) in respect of any special, indirect or consequential loss or damage; and (f) for any losses arising out of a Force Majeure Event, a "Force Majeure Event" meaning an event, or a series of related events, that is outside the reasonable control of the Party affected (including for instance failures of or problems with the Internet or a part of the Internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars etc.) and which by the exercise of reasonable diligence the Party affected was unable to prevent.
8. Data protection
8.1. The Provider and the Client shall comply with the applicable data protection legislation in relation to the processing of personal data.
8.2. The Client warrants that it has the legal right to disclose all data protected by any applicable data protection legislation (hereinafter "Personal Data") that it does in fact disclose to the Provider under or in connection with the Agreement.
8.3. The Provider warrants that: (a) it will act only on instructions from the Client in relation to the processing of any Personal Data performed by the Provider on behalf of the Client; and (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Client.
8.4. Sub-Processors: Client consents to the Provider's use of sub-processors to provide aspects of the SaaS-Services, and to Provider's disclosure and provision of Client Data to those sub-processors. The Provider publishes a list of its then-current sub-processors at https://www.archlet.io/subprocessors ("Sub-Processors List"). The Provider may authorize new sub-processors by provision of not less than thirty (30) calendar days' prior written notice to Client, and by updating the Sub-Processor List. To exercise its right to object to the Provider’s use of a new Sub-processor, Client shall notify Provider promptly in writing within fourteen (14) calendar days after receipt of Provider’s notice. In the event Client objects to a new Sub-processor, and that objection is not unreasonable, the Provider will use reasonable efforts to make available to Client a change in the SaaS-Services or recommend a commercially-reasonable change to Client’s configuration or use of the SaaS-Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Client. If Provider is unable to make available such change within a reasonable time period, which shall not exceed thirty (30) calendar days, Client may terminate the applicable Order Form(s) with respect only to those aspects of the SaaS-Service which cannot be provided by the Provider without the use of the objected-to new Sub-processor by providing written notice to Provider.
9. Confidentiality and publicity
9.1. The Provider covenants to keep confidential and not disclose the Client information that is marked confidential (hereinafter "Client Confidential Information") to any person save as expressly permitted by the Agreement. For the sake of clarity, nothing in this Section shall restrict the Provider in engaging third party providers (for example third party Internet service providers).
9.2. The Client covenants to keep confidential and not disclose any information disclosed (whether in writing, orally or otherwise) by the Provider to the Client (hereinafter "Provider Confidential Information") save as expressly permitted by the Agreement.
9.3. Confidential information of a Party may be disclosed by the other Party to that other Party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the confidential information disclosed.
9.4. The obligations set out in this Section 8.4 shall not apply to: (a) confidential information that is publicly known (other than through a breach of an obligation of confidence); (b) Client Confidential Information that is in possession of the Provider prior to disclosure by the Client, and Provider Confidential Information that is in possession of the Client prior to disclosure by the Provider; (c) Client Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Client, from an independent third party who has a right to disclose the relevant confidential information; or (d) confidential information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Party subject to such disclosure requirement must where permitted by law give to the other Party prompt written notice of the disclosure requirement.
9.5. Each Party will make any public disclosure relating to the conditions of the Agreement (including press releases, public announcements, and marketing materials) only with the prior written consent of the other Party.
9.6. Notification of BreachEach Party shall immediately notify the other Party if it becomes aware of (i) Any potential disclosure, access to or use of any Confidential Information in breach of this Agreement. (ii) Any unauthorized intrusion into systems containing Confidential Information; and (iii) Any disclosure of any Confidential Information where the purpose of such disclosure does not have any apparent correlation with the execution of this Agreement.Both Parties will give reasonable assistance to the other to prevent such breach of confidentiality and/or limit the consequences thereof.
Survival of Termination
The confidentiality obligations specified in this section will continue to apply even after termination of this Agreement.
Return of Confidential Information
Unless otherwise agreed, each Party will upon request return to the other party or destroy all tangible and intangible copies of the Confidential Information in its possession or in the possession of its Subcontractors or its staff upon expiration or termination of the Agreement. In addition, each Party will upon request delete all Confidential Information of the other Party in electronic format from its information systems and the information systems of its Subcontractors, with the exception of any automatically generated backup copies, which will remain subject to the confidentiality obligations under the Agreement and/or under applicable law.Unless otherwise agreed in the Order, Provider may not subcontract any Services to any third party which does not qualify as an Affiliate.
10. Term and Termination
10.1. The Agreement is entered into for the fixed term specified in the Order Form (hereinafter and heretofore the "Term").
10.2. In case of a renewal term each Party can terminate the Agreement as set forth in the Order Form.
10.3. Either Party may terminate the Agreement immediately by giving written notice to the other Party if the other Part: (a) commits any breach of any term of the Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other Party fails to remedy the breach within thirty (30) days of receipt of a written notice requiring it to do so; or (iii) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach). (b) the other Party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other Party under the Agreement).
11. Effects of termination
11.1. Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Sections 4, 8.4 and 11.2 of the ASTC.
11.2. Termination of the Agreement will not affect either Part's accrued liabilities and rights at the date of termination.
12. Force Majeure Event
12.1. Where a Force Majeure Event gives rise to a failure or delay in either Party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
12.2. Neither Party shall be liable for any delay or non-performance under this Agreement caused by any event beyond its reasonable control provided that the Party affected gives prompt notice in writing to the other Party of such Force Majeure Event and uses all reasonable endeavours to continue to perform its obligations under this Agreement.
12.3. A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will: (a) immediately notify the other Party; and (b) will inform the other Party of the period for which it is estimated that such failure or delay will continue.
12.4. If the Force Majeure Event continues for at least twenty (20) days, the Party not subject to the Force Majeure Event may terminate this Agreement by notice in writing to the other.
12.5. The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.
13. Amendments and Applicable laws
13.1. The Provider may change the format or nature of the Product at any time. The Provider shall use commercially reasonable endeavours to notify the Client of material functional changes to the Product, in writing, including by e-mail. If any such change deters the functionality of the Product, the Client may terminate this Agreement as set out in Section 10 of the ASTC.
13.2. The Client shall ensure that its use of the Product complies with all applicable laws, rules and regulations, including, but not limited to any data protection regulations.
14. Miscellaneous
14.1. No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
14.2. Unless specifically provided otherwise, any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall only be deemed to have been duly served if hand delivered or sent by e-mail (with the original to be forwarded by registered mail) to the address of the other Party set out in the Order Form or such other address as may be notified by that Party.
14.3. If a provision of the Agreement is determined by any court or other competent authority to be unlawful, invalid and/or unenforceable, the other provision of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted). The Parties commit themselves to substitute the ineffective provision with one that most closely reflects the economic intention of the ineffective provision. The same applies to unintentional gaps in the Agreement.
14.4. Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.
14.5. This Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
14.6. The Client may not assign any or all of its contractual rights and/or obligation without the prior written consent of the Provider.
14.7. The Client hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any affiliate or any successor to all or a substantial part of the business of the Provider from time to time.
14.8. Neither Party will, without the other Party's prior written consent, either during the Term of the Agreement or within six (6) months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other Party who has been involved in the performance of the Agreement.
14.9. Each Party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that Party’s power, which are necessary to enable the Parties to exercise their rights and fulfil their obligations under the Agreement.
14.10. This Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
14.11. This Agreement constitutes the entire agreement between the Parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of the subject matter.
14.12. This Agreement will be governed by and construed in accordance with the substantive laws of Switzerland excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG); and the exclusive place of jurisdiction is Zurich (City), Switzerland. The Provider may chose as alternative place of jurisdiction any competent court of justice worldwide.
Copyright Archlet AG, Version 1.5, March 2023
Annex 1 – Purpose of Product / Set-up
1. General description
The purpose of the Product is the provision of services in the field of intelligent sourcing to leverage sourcing data and processes for better and faster decision making. The Product allows the Client to process sourcing data, while supporting the Client with advanced analytics, negotiation preparation and scenario creation. The Client can upload sourcing data collected either through their current sourcing tool or the RFQ module of the Provider. The gathered bids are proactively validated in the engine of the Provider to allow for most efficient and effective bid analytics and decision making.
2. Updates
The Provider regularly updates the Product whenever a new technology within the Product is published online to make sure the Client is always up to date.
3. Set up / System requirements
The Provider does not warrant or represent that the Product will be compatible with any application, program or software not specifically identified as compatible. The following applications, programs and software are compatible with the Product: Microsoft Edge (92+), Google Chrome (87+), Mozilla Firefox (103+), Opera (72.0+), Safari (14+)There is no support for IE.
Annex 2 - Service Level Agreement (SLA)
1. Service Availability
The Provider will use commercially reasonable efforts to ensure that the Product will be available for all days during the year for 99.5 % of the time, calculated monthly. "Downtime" (calculated as the difference between 100% of the time in a month and the actual percentage of time during that month that the Product is available) will exclude unavailability due to (i) scheduled maintenance; (ii) technical malfunctions in the Provider's website systems or any other circumstances beyond the Provider's reasonable control (for example but not limited to Internet delays, network congestion and ISP malfunctions).
2. Helpdesk
The Provider will use commercially reasonable efforts to make available a 365/24/7 e-mail helpdesk facility (hereinafter the "Helpdesk").The Client must make all requests for Support Services through the Helpdesk at support@archlet.ch.
2.1. Definitions
Support Request are classified by severity (hereinafter the “Severity Level”). Severity Levels are defined as follows:
Severity Level 1 (a) The App is down, OR (b) Key component(s) of the Provider’s core product offering functionality is/are not working AND no workaround available.
Severity Level 2
(a) Core functionality of the App is not working, BUT workaround exists.
Severity Level 3
(a) Non-core functionality is not working. The effect of the incident or problem does not directly impact the Client’s ability to use the App.
Severity Level 4
(a) Client experiencing incident or problem which is not classified as level 1, 2, or 3, OR
(b) Not supported scenario (e.g. use of unsupported browser)
“Business Hours” means 9am – 6pm (CET) Monday-Friday except Swiss public national holidays and holidays in the municipality of Zurich City.
“Business Days” means Monday-Friday except Swiss public national holidays and holidays in the municipality of Zurich City.
2.2. Response Times
The Provider will use reasonable endeavours to respond to requests for Support Services made through the Helpdesk as swiftly as possible and within the following response times. All requests with respect to the Product shall be prioritized based upon the severity of the problem:
Severity Level 1 - First Response Time: 2 Business Hours Severity Level 2 - First Response Time: 4 Business Hours Severity Level 3 - First Response Time: 16 Business Hours Severity Level 4 - First Response Time: Best Effort
2.3. Resolution Times
The Provider will use reasonable endeavours to resolve issues raised by the Client through the Helpdesk as swiftly as possible and within the following response times:
Severity Level 1- Resolution Time: 9 Business Hours Severity Level 2 - Resolution Time: 27 Business Hours Severity Level 3- Resolution Time: 30 Business Days Severity Level 4 - Resolution Time: Best Effort
Measurement
Uptime is measured using the Provider's systems over each month. It is calculated to the nearest minute, based on the number of minutes in the given month (for instance, a 31-day month contains 44'640 minutes).
Limits on Support Services
The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by: (a) the improper use of the Product by the Client; or (b) the use of the Product otherwise than in accordance with the terms and conditions of the Agreement.
4. Upgrades
The Client acknowledges that from time to time during the Term of the Agreement the Provider may, in its sole discretion, apply Upgrades to the Product, "Upgrade" meaning new versions of, and updates to the Product or the Application, whether for the purposes of fixing an error, bug or other issue or enhancing the functionality of the Product or Application. The Client acknowledges that such Upgrades may result in changes the appearance and/or functionality of the Product and/or Application.
5. Annexed maintenance
The Provider may suspend its SaaS-Services (including access to the Product and/or the Application) to carry out scheduled maintenance, such maintenance to be carried out between Saturday 8am and Sunday 5pm (CET). The Provider uses reasonable efforts to perform Scheduled Maintenance no more than once per calendar month and for not more thanper calendar month. The Provider will make every effort to ensure no disruption during maintenance. Nevertheless, access to the Product may be limited or even suspended.
6. Data Storage
6.1. Operational Data Storage
Data is stored at rest using best-in-class 256-bit TLS encryption. The system of the Provider is operating in ISO 27001 certified data centres from Microsoft Azure. Servers include automatic failover and automated health checks. Physical data storage takes place in the Netherlands. The Provider is free to change physical data storage to any other country within the EU and EEA without any notification requirement to the Client.
6.2. Operational Data Transport
All communication between the Application and internal or external components (e.g. web browsers) are protected by SSL encryption.
7. Data Backups
Backups are performed on a rolling basis in the following intervals:
(1) Incremental backup every 5 minutes (2) Full backups every 12 hours
Historical backups are stored as follows:
(1) All backups are kept on a rolling basis of a 30-day history
All backups are stored using best-in-class 256-bit TLS encryption.
