General Terms and Conditions
These general terms and conditions (“GTCs”) constitute an agreement between [RIVERON ENTITY] (“Riveron”) and you (“you” or “Supplier”) related to your provision of Goods and/or Services to Riveron. Terms capitalized herein but undefined shall have the definitions assigned them in the MSA executed between the Parties.
- Pricing and Payment Terms.
- In consideration of the Goods delivered and/or the Services provided by Supplier in accordance with the Contract Documents, all prices are firm and shall not be subject to change, except as provided in the Contract Documents. Supplier’s price (i) all packaging and freight to the specified delivery point; (ii) all applicable taxes and other government charges including but not limited to all sales, use, or excise taxes; (iii) all customs duties, fees, or charges; and (iv) all items, Intellectual Property Rights, and services necessary or incidental to provide the Goods and perform the Services in accordance with the Contract Documents (“Included Expenses”); provided, however, that any value added tax that is recoverable by Riveron, state and local sales, use, excise and/or privilege taxes, if applicable, shall not be included in Supplier’s price but shall be separately identified on Supplier’s invoice. If Supplier is legally obligated to pay value added and/or similar tax, Supplier shall invoice Riveron in accordance with applicable rules to enable Riveron to reclaim such tax.
- Supplier shall submit invoices in an auditable form, complying with applicable laws, generally accepted accounting principles and the specific Riveron requirements, containing the following minimum information: (i) Supplier name, address and reference person including contact details, (ii) invoice date, (iii) invoice number, (iv) applicable SOW number, (v) address of Riveron’s delivery location (if applicable), (vi) quantity of Goods, if applicable, (vii) price (total amount invoiced), (viii) tax or sales tax amount, and (ix) payment terms as agreed.
- Invoices must be sent to [___] (or as otherwise agreed with Riveron). Riveron shall pay an Invoice in accordance with the payment terms agreed in the Contract Documents. Riveron will reimburse expenses that are (i) out-of-pocket expenses incurred by the Supplier or its Representatives directly in connection with providing the Goods and/or Services, (ii) reasonable and pre-approved in writing by the Riveron, (iii) separately set forth on an invoice, (iv) accompanied by documentation such as receipts, vouchers and invoices that verify the amount, date and nature of each expense, and (v) are not Included Expenses. Services charged on the basis of hourly rates require written confirmation of Supplier’s time sheets by Riveron. Supplier shall submit such time sheets to Riveron for confirmation as may be instructed by Riveron.. Riveron is not obliged to pay invoices based on time sheets which are not confirmed by Riveron in writing. Riveron reserves the right to set off or withhold payment for Goods and/or Services not provided in accordance with the Contract Documents. Riveron may withhold payment pending receipt of evidence from Supplier, as reasonably required by Riveron, to establish the absence of liens, encumbrances and claims against any property of Riveron related to the Goods and/or Services that are the subject of the Contract Documents. Supplier must provide invoices in no event more than 90 days after providing the Goods and/or Services to Riveron, otherwise Supplier waives its right to payment.
- As of the date the amount stated on an Invoice (“Amount Due”) is sent by Riveron to Supplier, the Supplier, on its behalf and on behalf of its successors, assigns, and respective past or present, affiliates, subsidiaries, subcontractors, partners, members, shareholders, trustees, fiduciaries, directors, officers, managers, employees, agents, attorneys, advisors and representatives (“Associated Parties”) generally, irrevocably, unconditionally and completely waives, releases and forever discharges Riveron, its successors, assigns, and respective past or present, affiliates, subsidiaries, partners, members, shareholders, trustees, fiduciaries, directors, officers, managers, employees, agents, attorneys, advisors and representatives (collectively, the “Released Parties”), from and against any and all past, present and future claims, controversies, disputes, rights, causes of action, suits, demands, damages, costs, expenses, liabilities and obligations of any nature whatsoever, whether currently known or unknown, suspected or unsuspected, disclosed or undisclosed, absolute or contingent, at law or in equity, that Supplier or any Associated Party of such Supplier now has, has ever had or may have in the future against any of the Released Parties arising out of or relating, directly or indirectly, to Goods and/or Services or the Amount Due, including but not limited to liens, offsets, restrictions, encumbrances, or rights of repossession or replevin related to the Goods and/or Services, or claims of ownership or title to the Goods and/or Services.
- Supplier’s Representatives
- Supplier will assign qualified Representatives to perform the Services and/or deliver the Goods under the MSA and each SOW and will ensure that its Representatives devote sufficient time and effort to performing the Services as necessary to complete all Services in accordance with this Agreement and each SOW. Supplier will bear all liability for the acts or omissions of the Representatives assigned to perform the Services. If Services will be performed by Supplier at any Riveron site or Riveron’s designated third party site, Supplier’s Representatives will observe and comply with Riveron’s security, safety, health, and environmental procedures, rules, regulations, and policies; failures of Supplier’s Representatives to comply with security, safety, health, or environmental requirements may result in immediate dismissal from a site at Riveron’s sole discretion.
- If the Goods and/or Services involve unescorted access to a site, or access to Riveron’s IT network, Supplier will at its cost (i) ensure that its personnel have undergone legally permitted background investigations and drug screening similar to that required for Riveron’s employees at the same location and (ii) contract with Riveron’s designated external vendor(s) as reasonably required by Riveron to centrally document and track Supplier compliance with such requirements. Supplier will use its best efforts to ensure the continuity of Supplier’s Representatives performing the Services. Supplier will exercise commercially reasonable efforts to minimize any disruption to Riveron’s normal business operations.
- If any Supplier Representatives performing Services are unacceptable to Riveron for any legally permitted reason, Riveron will notify Supplier and Supplier will take prompt, appropriate corrective action, which may include replacing the Representatives. Riveron and Supplier must agree that the replacements have acquired orientation and background substantially equal to that of the Representatives being replaced and there will be no charge to Riveron for any replacement Representatives assigned by Supplier unless otherwise agreed.
- Covenants; Representation and Warranties
- Each Party represents that it is duly organized and authorized to enter into the Contract Documents and to perform all obligations; and that it is not a party to any agreement with a third party which would restrict its ability to perform its obligations under the Contract Documents. Supplier will promptly notify Riveron of any action taken by or against it that could result in a breach of Supplier’s obligations or representations under the Contract Documents.
- Supplier warrants each of its Representatives has the proper skill, training and background necessary to accomplish his or her assigned tasks; all Services will be performed in a competent and professional manner, by qualified Representatives under the direction and control of Supplier, and in accordance with standards in the industry provided by reputable service providers performing services of a similar nature.
- Supplier shall provide the Goods and/or Services in compliance with all relevant laws, regulations, and codes of practice. Supplier represents and warrants that it is and will remain fully compliant with all applicable Laws, international trade and import/customs laws, executive orders, regulations, instructions, and policies, including, but not limited to, satisfying all necessary export and import clearance requirements, proofs of origin, licenses and exemptions therefrom, and all proper filings or notifications with appropriate governmental bodies and/or disclosures relating to the provision of services, the release or transfer of goods, hardware, software and technology, including, but not limited to, those required under the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations, known commonly as ‘ITAR’ and U.S. Customs and Border Protection regulations, and the Foreign Trade Regulations (“FTR”).
- Supplier represents and warrants that no goods, materials, equipment, components, parts, technology, or services that are included in, incorporated into, or provided in connection with the Goods and/or Services originate in any country or region that is subject to a comprehensive embargo maintained by any government authority that Riveron deems, in its sole discretion, may impose penalties or other measures against Riveron, including, but not limited to, the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the US Department of State. Such embargoed countries or regions may include, but are not limited to, Cuba, Iran, North Korea, Syria, the so called Donetsk People’s Republic, Luhansk People’s Republic, and Crimea regions of Ukraine, and any countries or regions that may come under US embargo in the future. If any of the Goods and/or Services are or will be subject to export restrictions, it is Supplier’s responsibility to promptly inform Riveron (and any relevant affiliate) in writing of the particulars of such restrictions. Further, Supplier represents and warrants that no goods, materials, equipment, components, parts, technology, or services that are included in, incorporated into, or provided in connection with the Goods and/or Services will violate the Export Control Reform Act, the International Emergency Economic Powers Act, or the Trading with the Enemy Act, all as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism Order (Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001)), issued by the President of the United States of America (Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or any enabling legislation or executive order relating to any of the same. Without limiting the generality of the foregoing, the Supplier and its Affiliates: (a) are not and will not become a blocked person described in Section 1 of Anti-Terrorism Order; and (b) does not knowingly or will knowingly engage in any dealings or transactions or be otherwise knowingly associated with any such blocked person. The Supplier and its Affiliate is in compliance, in all material respects, with the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism Act (USA Patriot Act of 2001).
- The Supplier and its Affiliates represents and warrants that they are in full compliance with all OFAC sectoral or governmental sanctions including but not limited to those implemented against Russia and Belarus or against the Government of Venezuela, or as may be implemented in or against any and all countries, regions, or governments in the future.
- The Supplier and its Affiliate is in compliance, in all material respects, all relevant federal and state anti-money laundering laws including, but not limited to the Bank Secrecy Act, as amended.
- Supplier represents and warrants that it is not a person subject to economic or financial sanctions imposed by a government entity, including any Sanctioned Persons. Supplier acknowledges that Sanctioned Persons may include persons who are not explicitly included on any sanctions list maintained by a government entity, but also persons who are directly or indirectly owned 50 percent or more in the aggregate by one or more Sanctioned Persons. Supplier further represents and warrants that no Sanctioned Person has any property interest, financial interest, or other interest in the Goods and/or Services and that the provision of the Goods and/or Services shall not involve the transferring, paying, exporting, or withdrawing of any property or interests in property of any Sanctioned Person.
- If requested in writing, Supplier agrees to certify to Riveron, by separate writing, that it will comply with any and all mandatory private, federal, state, and local contract flow-down clauses and provisions including, but not limited to, any and all mandatory clauses in the Federal Acquisition Regulations (“FAR”), any relevant supplements (e.g., the Defense Federal Acquisition Regulations Supplement (“DFARS”), and any clauses arising from Other Transaction Authority contracts. For example, if requested in writing, Supplier agrees to certify to Riveron, by separate writing, that it complies with the IT/Cyber Security requirements of FAR 52.204-21, DFAR 252.204-7009, and DFAR 252.204-7012. Furthermore, Supplier covenants that it is not debarred, suspended, or proposed for debarment, or otherwise ineligible to perform any contract by any U.S. executive agency or other U.S. governmental entity.
- Supplier represents and warrants that: (a) the Goods and/or Services it provides Riveron are not covered telecommunications equipment or services, and (b) the Goods and/or Services it provides Riveron do not use covered telecommunications equipment or services, as defined in Section 889(a)(1) of the U.S. National Defense Authorization Act for Fiscal Year 2019 and its implementing regulations. Supplier further represents and warrants that it will notify Riveron within one (1) business day in the event Supplier discovers that the Goods and/or Services it provides Riveron are or use such covered telecommunications equipment or services.
- Each Party warrants that has not and it will not, directly or indirectly, and that each has no knowledge that other persons will, directly or indirectly, offer, promise or make any payment, gift kickback or other commitment to its customers, to government officials or employees or to agents, directors and employees of each Party, or any other party, for obtaining or rewarding favorable treatment by Riveron with respect to the terms, conditions, price, performance or award of a Contract Documents, or in a manner contrary to applicable laws (including but not limited to the U. S. Foreign Corrupt Practices Act, the UK Bribery Act 2010 and, where applicable, legislation enacted by member states and signatories implementing the OECD Convention Combating Bribery of Foreign Officials), and shall comply with all relevant laws, regulations, ordinances and rules regarding bribery and corruption. Nothing in the Contract Documents will render either Party or any of its affiliates liable to reimburse the other for any such consideration given or promised.
- Supplier covenants it shall (i) respect the human rights of its employees, provide a safe and appropriate working environment, eliminate discrimination, and provide equal opportunity in employment; (ii) not tolerate, and cause its suppliers not to tolerate, forced labor, underage labor or illegal alien labor, and comply with applicable laws and regulations of related countries or regions regarding employment terms including wages and working hours; (iii) not have any affiliation with anti-social forces, organizations and movements (including, without limitation, gangsters, criminal organizations and terrorist organizations) and warrants that it will not hold itself out as, or knowingly engage the services of or provide contributions of any form to the same for any reason; (iv) require its suppliers and business partners to agree to accept the same obligations as Supplier has undertaken under this Section 3.8.
- Any material violation of an obligation contained in this Section 3.9 and its subsections is a material breach of the Contract Documents and entitles Riveron to terminate the Contract Documents with immediate effect and without prejudice to any further rights or remedies available thereunder or at law.
- Riveron is an equal opportunity employer. As applicable, the Parties agree that they shall abide by the requirements of Executive Order 11246, as amended by Executive Order 11375 (Equal Employment Opportunity); 38 U.S.C. §4212 (Vietnam Era Veterans Readjustment Assistance Act of 1974); 29 U.S.C. §793 (Section 503 of the Rehabilitation Act of 1973); and the implementing regulations found at 41 CFR Section 60-1.4(a); 41 CFR Section 60-300.5(a); 41 CFR Section 60-741.5(a); and 29 CFR Part 471, Appendix A to Subpart A, and that these requirements are incorporated herein. 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, sex, sexual orientation, gender identity or national origin, and notification of employee rights. Additionally, these regulations prohibit employers from discharging, or otherwise discriminating against, employees or applicants who inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants. Moreover, these regulations require that Supplier take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
- Supplier shall notify Riveron of all “hazardous materials” (as that term is defined in applicable federal, state and local statutes) and such other identification of materials used in the provision of Services or contained in the Goods as may be required by Riveron from time to time, and provide any appropriate special handling instructions. Supplier shall furnish Riveron with copies of all applicable “material safety data sheets” for such materials no later than the shipment date under the Contract Documents.
- Supplier further represents, warrants, and covenants for itself and each of its Subcontractors that (i) the Goods and/or Services and the media on which the Goods and/or Services are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any of Riveron’s or any user’s information system(s), (ii) the Goods will not include any open source software or other third party software or Intellectual Property Rights [except as expressly agreed in writing by Riveron], (iii) the Goods and/or Services will not infringe, misappropriate or otherwise violate the Intellectual Property Rights or other proprietary rights of any third party, and (iv) all Goods and/or Services furnished hereunder are and will be: (A) free and clear of all liens, claims and encumbrances, (B) new and free from defects in design, materials and workmanship, and (C) of merchantable quality and fit for the purposes for which they are intended. All Goods and/or Services not conforming to these requirements, including substitutions not properly approved and authorized, may, at the election of Riveron, be considered in breach of the Contract Documents.
- Supplier covenants for itself and each of its affiliates and Representatives that: (i) it and its affiliates and subcontractor(s) is/are a validly existing business entity, duly licensed and qualified to carry on its business/operations and perform its obligations, (ii) it and its affiliates and Representatives has/have all rights, licenses, permits, qualifications and consents necessary to perform its and/or their respective obligations, (iii) it and its affiliates and Representatives’ performance under the Contract Documents does not and will not violate or cause a breach of the terms of any other agreement to which it is a party, (iv) it and its affiliates and Representatives have the financial viability to fulfill the obligations under the Contract Documents (and Supplier will provide prompt written notice to Riveron of any event or condition that results in, or is reasonably likely to result in, a material adverse change to Supplier’s or its it and its affiliates and subcontractors’ financial condition, reputation or operation), (v) there are no undisclosed collective bargaining agreements or other labor agreements to which Supplier and its affiliates and Representatives is a party or by which it or its affiliates and subcontractor(s) are bound (vi) it and its affiliates and Representatives will take all necessary precautions to prevent injury to any person or damage to any property while performing Goods and/or Services that are services, and (vii) it and its affiliates and Representatives is/are not in default of any other agreement and there are no proceedings threatened or pending under order of any court, arbitrator, administrative agency or other authority, which would affect performance under the Contract Documents.
- If any Goods and/or Services do not comply with any breach of warranty or representation made by Supplier, in addition to any other remedies Riveron may have, Riveron may require Supplier to, in the following order (at Supplier’s sole cost and expense): (i) procure for Riveron or its affiliates the right to continue using the affected Goods and/or Services, (ii) if applicable, replace the affected Goods and/or Services with conforming and/or non-infringing Goods and/or Services at no cost or loss (in time, revenue, or opportunity) to Riveron, (iii) modify the affected Goods and/or Services so that such Goods and/or Services conform or become non-infringing without detracting from their functionality or performance, or (iv) if the foregoing alternatives are not commercially available, within fifteen (15) days, refund to Riveron all fees paid to Riveron for such non-conforming or infringing Goods and/or Services.
- To the extent permitted by applicable law, any implied warranties which favor the Supplier shall be excluded from these GTCs and any other agreement between Riveron, the Supplier, and/or their respective affiliates. The provisions of this Section 2 shall survive any performance, acceptance or payment pursuant to any Contract Documents between the parties or their affiliates and shall extend to any substituted or remedial Goods and/or Services provided by the Supplier.
- The terms and conditions of Contract Documents shall apply to the Supplier’s Representatives as if such persons or parties were signatories hereto and thereto, and the Supplier agrees that it shall (i) ensure its Representatives observance, performance, and compliance with the terms of the Contract Documents, and (ii) be directly liable to the Riveron or its Affiliates for any action or inaction by any of its Representatives in breach of any of the Contract Documents without limitation, proportionality, or offset. For the avoidance of doubt, nothing hereunder shall be considered consent to subcontractors in the absence of the requirements as set forth in Schedule H to the MSA.
- Delivery and Acceptance
- The Services shall be provided at the Delivery Location.
- Delivery of Goods or provision of Services shall not be deemed to be acceptance of such Goods or Services by Riveron. Riveron (or its nominated affiliate at the Delivery Location) shall have reasonable time to inspect or test the Goods and/or Services and to report any defects to Supplier. If a defect in the Goods and/or Services was not reasonably detectable during the inspection, Riveron (or its nominated affiliate at the Delivery Location) shall have reasonable time to provide notice of such defect after it has become apparent and/or to reject the Goods and/or Services. Supplier shall inform Riveron (and any relevant affiliate) in writing within a reasonable time period in advance when the Goods and/or Services are ready for acceptance. Riveron may enforce any remedy defined in the Contract Documents for any rejected Goods and/or Services.
- Supplier shall deliver the Goods and provide the Services: (i) in accordance with the applicable laws and regulations, (ii) in accordance with the Contract Documents (including by providing any necessary documentation) and all Riveron instructions, (iii) free from defects and from any rights of third parties, (iv) fit for any particular purpose specified in the Contract Documents or, in absence thereof, fit for the purposes for which such Goods and/or Services would ordinarily be used, (v) in material compliance with the terms and conditions of the applicable licenses related to Integrated Software governing the use thereof, and the Goods or the use thereof by Riveron shall not cause Riveron or Riveron’s Intellectual Property Rights to be subject to the terms or conditions of a copyleft license, or require Riveron to fulfil any open source license obligations, and (vi) free of restrictive devices (i.e. any key, node lock, time-out, time bomb, or other function, whether implemented by electronic, mechanical, or other means,), viruses, malware, and other harmful code which may interfere with the use of the Goods regardless of whether Supplier or its personnel purposefully placed such code in the Goods.
- Audit Rights. Supplier and its Affiliates grant an unrestricted right of information, inspection, audit, physical access, system access and data access with respect to the Services to (i) Riveron and its Affiliates, (ii) Riveron’s Representatives, and (iii) any Supervisory and Regulatory Authorities (such parties in (i), (ii), and (iii), collectively “Auditors”), at all times insofar as may be necessary or desirable but no more than once annually, unless a non-compliance was reasonably suspected or discovered, in Riveron’s judgment, to determine Supplier’s compliance with its obligations under the Contract Documents or in compliance with applicable law. The Auditors will have access to Supplier’s and its Affiliates’ Records (as defined below), books, and operations limited in scope to Supplier’s facilities and Records relating to the Goods and/or Services provided hereunder. All audits will be conducted during normal business hours and will minimize disruption to Supplier’s business operations. If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following discovery of the error and the resulting payment or credit will be issued promptly. Supplier agrees to cooperate in all respects necessary to enable the Auditors to carry out the intent and purposes of this section.. Riveron may notify Supplier of any deficiencies in performance discovered in any such audit, which deficiencies shall be promptly corrected by Supplier. I n the event an audit discloses any billing discrepancy in Riveron’s favor, Supplier shall, at Riveron’s option, refund the amount of any such overpayment within thirty (30) days after receipt of written notice from Riveron or credit the amount of such overpayment to subsequent invoice(s). Supplier shall notify Riveron as soon as possible of any event that could potentially lead to prolonged service failure or disruption in the provision of the Goods and/or Services. “Records” means all recorded information, regardless of physical form or characteristics, made or received for the purpose of and relevant to all proceedings relating to the Goods and/or Services and relating to Supplier’s obligations under the Contract Documents. “Supervisory and Regulatory Authorities” means any governmental authority (including courts) with jurisdiction over Riveron or their respective Affiliates, with respect to the Services and/or any other matters relating to the performance by either Party of its obligations under this Agreement.
- Confidential Information
- “Confidential Information” means all information, including without limitation Riveron’s specifications, samples, drawings, materials, know-how, designs, processes, Work Product, software, other technical, business, or financial information, data, the terms and conditions of this Agreement including any SOW, and any Personal Data of all Riveron Representatives that: (i) is supplied to or observed or overheard by Supplier or its Representatives in connection with the Goods and/or Services; (ii) Supplier designs, develops, or creates for or on behalf of Riveron in connection with the Contract Documents; or (iii) all derivatives of (i) and (ii) that Supplier has or will design, develop or create. Without limiting the foregoing, all Work Product constitutes Riveron’s Confidential Information. Supplier’s obligations of confidentiality with respect to Confidential Information continue for seven (7) years after expiration or termination of the MSA, except for Personal Data and trade secrets which will be held in confidence perpetually, and other Confidential Information which the Parties agree, in writing, will be held in confidence perpetually. “Personal Data” means any information relating to an identified or identifiable natural person (an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person), or as that term (or similar variants) may otherwise be defined in applicable data protection, privacy, breach notification, or data security laws or regulations.
- Supplier will: (i) disclose Confidential Information only to (a) its employees who are under a duty to protect the Confidential Information and (b) those of its agents, personnel or third parties who are required to have the Confidential Information in connection with the performance of the Goods and/or Services or the performance of obligations under the Contract Documents and, whether (a) or (b), are bound in writing to Supplier to protect and use the Confidential Information in accordance with the confidentiality obligations of the Contract Documents, and Supplier will be responsible for any breaches of the confidentiality obligations of the Contract Documents by these employees, agents, personnel or third parties; (ii) use Confidential Information only in relation to the performance of the Goods and/or Services or the performance of obligations under the Contract Documents; (iii) protect the Confidential Information using the same degree of care as it uses to protect its own proprietary information, but with no less than a reasonable degree of care; and (iv) not decompile, disassemble, decode, reproduce, redesign, or reverse engineer Confidential Information or any part thereof. Supplier may make a limited number of copies of Confidential Information as necessary to complete the performance or receipt of the Goods and/or Services or the performance of obligations under the Contract Documents. All copies made will reproduce the restrictive legends of the original. Each Party retains ownership of its Confidential Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets.
- With the exception of Personal Data, the Contract Documents impose no obligation upon Supplier if Supplier can demonstrate that the Confidential Information: (a) was rightfully in Supplier’s possession before receipt from Riveron and was not accompanied by a duty of confidentiality; (b) is or becomes a matter of public knowledge through no fault of Supplier; (c) is rightfully received by Supplier from a third party and is not accompanied by a duty of confidentiality; (d) is disclosed by Riveron to a third party without a duty of confidentiality on the third party; (e) is independently developed by Supplier without use of Riveron’s Confidential Information; (f) is disclosed under operation of law, provided Supplier notifies Riveron and upon Riveron’s request and at Riveron’s cost cooperates in all reasonable respects to contest the disclosure or obtain a protective order or other remedy.
- Supplier will return or destroy, at Riveron’s discretion, Confidential Information and all copies upon the earlier of Riveron’s written request or termination of the MSA and will certify in writing to the return or destruction within fifteen (15) calendar days. Notwithstanding the foregoing, Supplier may retain copies of the Confidential Information (but not Personal Data) pursuant to bona fide document retention policies and procedures and only to the extent such Confidential Information is only accessible by the Supplier’s IT professionals; provided, however, that such retained Confidential Information shall remain subject to the terms and conditions of the Contract Documents for as long as such Confidential Information is retained regardless of the termination or expiration of the MSA or any of the Contract Documents.
- General Provisions
- The Contract Documents contain the entire agreement between the Parties and supersedes and replaces any prior or inconsistent agreements, negotiations, representations or promises, written or oral, between the Parties respecting the subject matter hereof. Neither Party has relied on any promises, inducements, or representations by the other, except those expressly stated in the Contract Documents. No modification of the Contract Documents will be binding on either Party unless set forth in a writing signed by an authorized representative of both Parties specifically stating it is amending the Contract Documents. No course of dealing, prior dealings, usage of trade or course of performance will be used to modify, supplement or explain any terms used in the Contract Documents.
- Neither Party (nor any affiliate receiving the Goods and/or Services) will be liable for any delay or failure to perform its obligations under a Contract Documents if the delay or failure results from an event of Force Majeure. If a Force Majeure event exceeds thirty (30) calendar days, either Party may terminate the Contract Documents forthwith by written notice without liability. Each Party shall use reasonable efforts to minimize the effects of the Force Majeure event.
- Supplier may neither assign, nor novate, transfer, encumber or subcontract the Contract Documents, nor any parts thereof (including any monetary receivables from Riveron) without prior written approval of Riveron.
- Riveron may assign, novate, transfer, subcontract or deal in any other manner with the Contract Documents, in whole or in part, at any time, and on more than one occasion thereof to its affiliates, or to any successor-in-interest or title which acquires that part of Riveron’s group of companies’ business to which the relevant Contract Documents relates (and such transferee may do the same).
- Any notice must be given duly signed by registered mail, courier, fax or by e-mail to the address of the relevant Party as stated in the Contract Documents and/or to such other address as such Party may have notified in writing (including affiliates operating at relevant Delivery Locations). E-mail and fax require written confirmation of the receiving Party. Supplier’s reply, correspondence, information or documentation related to the Contract Documents must be provided in the language used in the Contract Documents.
- Failure to enforce or exercise any term of the Contract Documents does not constitute a waiver of such term and does not affect the right later to enforce such or any other term therein contained.
- The Contract Documents are governed by the laws stated in the MSA, including the Uniform Commercial Code adopted therein, but excluding the provisions of the United Nations Convention on International Sale of Goods. If Riveron and Supplier are registered in the same country, any dispute arising in connection with the Contract Documents which cannot be settled amicably shall be submitted for resolution to the jurisdiction of the State court stated in the MSA or the applicable U. S. District Court corresponding thereof. If Riveron and Supplier are registered in different countries, any dispute arising in connection with the Contract Documents which cannot be settled amicably shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance therewith. Place of arbitration shall be Riveron’s place of registration. The language of the proceedings and of the award shall be English.
- The invalidity or unenforceability of any term of the Contract Documents will not adversely affect the validity or enforceability of the remaining terms. The Contract Documents will be given effect as if the invalid or unenforceable term had been replaced by a term with a similar economic effect.
- Nothing in Contract Documents will restrict Riveron’s right to contract with any third party to provide or perform, or to provide or perform on its own behalf, services, deliverables and related products similar or identical to the Services and related products provided by Supplier pursuant to the Contract Documents or any SOW.
- Provisions of the Contract Documents which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination will remain in full force and effect notwithstanding such termination. The obligations set forth in Section 2, Section 3, Section 4, and Section 5 exist for an indefinite period of time and survive expiration or termination of the Contract Documents for any reason.
- The relationship of the Parties is that of independent parties dealing at arm’s length and nothing in the Contract Documents may be construed to constitute Supplier as an agent or employee of Riveron (or of any affiliate) or so as to have any kind of partnership with Riveron or any affiliate, and Supplier must not represent itself as or act on behalf of Riveron or its affiliates. The Contract Documents does not imply any employment relationship between Riveron (or any affiliate), and Supplier, or between Riveron (or any affiliate) and Supplier’s employees assigned to the execution of the Contract Documents. Riveron and its affiliates remain free of any responsibility or liability for labor, social security or taxes with respect to Supplier and its employees assigned to the execution of the Contract Documents.
- The Parties acknowledge electronic signature (e. g. Adobe Sign), applied by authorized persons, to be sufficient and binding for any documents related to the Contract Documents, including, without limitation, documents for which the Contract Documents requires written form, or which require to be signed by the Parties.
- The following capitalized terms used herein shall have the following meanings:
Delivery Location means a location specified by Riveron.
Force Majeure means an event that was not foreseeable by the affected Party (or affiliate) at the time of execution of the Contract Documents, is unavoidable and outside the reasonable control of the affected Party (or affiliate), provided that it cannot overcome such event despite all reasonable efforts, and that it provides notice to the other Party (and, in the case of Supplier being affected, to any relevant affiliate) within five (5) calendar days from occurrence of the Force Majeure event. Supplier’s ability to sell Goods and/or Services at a more advantageous price or Supplier’s economic hardship in buying materials or processing necessary for manufacture of the Goods and/or Services will not constitute a Force Majeure event.
Goods means items to be delivered by Supplier in accordance with the Contract Documents and/or all materials, documents, or other deliverables which are the result of Services provided by Supplier under the Contract Documents in any form or media, including but without limitation to data, diagrams, drawings, reports and specifications.
Integrated Software means, to the extent that the Goods contains software necessary for operation of Goods, was not developed for Riveron or its affiliates, and is embedded in and delivered as integral part of Goods.
Intellectual Property Rights means all (i) patents, industrial designs, utility models, copyrights, mask work rights, design rights, database rights and rights in trademarks, service marks, trade dress, trade names, and trade secrets and other proprietary and confidential information, including designs, drawings, processes, source code, algorithms, know-how, inventions and invention disclosures (whether or not patentable), in each case whether registered or unregistered; (ii) applications, reissues, confirmations, renewals, extensions, divisions or continuations for any of the foregoing rights; (iii) goodwill and moral rights associated with any of the foregoing rights; and (iv) all other intellectual property rights and similar forms of worldwide protection.
MSA means the master services agreement executed by and between Riveron or an Affiliate and the Supplier or an Affiliate.
Sanctioned Persons means a person designated on the Specially Designated Nationals and Blocked Persons List administered by OFAC, or any other OFAC lists implementing full, partial, or any other type of sanctions against a person, their property, and/or their interests in property. Sanctioned persons includes those entities owned 50 percent or more by persons on the SDN List, persons ordinarily resident in sanctioned jurisdictions, entities owned 50 percent or more by sanctioned Governments. Finally Sanctioned Persons includes persons debared or designated under any list eliminating or reducing any export, reexport, transfer, permanent import, temporary import, government contracting, or any other transaction privileges maintained by the U.S. Department of State, the U.S. Department of Commerce, the U.S. Department of Defense, the U.S. Department of Homeland Security, or any other U.S., UK, Canada, EU, or other government department or agency.
SOW means a statement of work executed between the Parties.
Technology means necessary for the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item (as those terms are used in the EAR). Technology is information that may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information revealed through visual inspection.
- The following capitalized terms used herein shall have the following meanings: