Effective date: August 30, 2023
Welcome, and thank you for your interest in Archer RE Inc. (“Archer”, “Service Provider”, “we”, or “us”) and our website and web-based platform available at https://www.archer.re (the “Website”, “Site” or “Archer Platform”), and our related websites, networks, software, deliverables and other services made available by us (together with the Archer Platform, our “Service” or “Services”). The Archer Platform leverages automated and predictive models and data analytics to provide you (“you” or a “User”) with certain metrics, data and insights regarding real estate properties, enabling you to source and underwrite deals.
Archer offers additional services at a cost, so in addition to these Terms, your access to the Service may also be governed by a separate subscription agreement with Archer (“Subscription Agreement”, and together with this TOU, “Applicable Agreements”). The Subscription Agreement, typically entered into by and between Archer and a Subscribing Entity (as defined below), may contain additional terms and restrictions that apply to your use of the Services.
Each User, including any Subscribing Entities, is bound by these Terms and the terms of any applicable Subscription Agreement, and shall be jointly and severally liable under the Applicable Agreements. Please contact Archer at firstname.lastname@example.org for more information on the Archer Platform.
2. Legally Binding Agreement
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
By registering for an account or otherwise accessing the Service, you agree that you have read and understood, and, as a condition to your use of the Service, you agree to be bound by, these Terms. If you are not eligible, or do not agree to these Terms, then you are not permitted to use the Service. Your use of the Service, and Archer’s provision of the Service to you, constitutes an agreement by Archer and by you to be bound by these Terms.
If you do not agree to these Terms, you are prohibited from accessing, and must immediately discontinue your access of, the Services. Please exit and discontinue all access immediately.
ARBITRATION NOTICE. You agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ARCHER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under the Applicable Agreements (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (Please review Section 13 for additional details.)
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
If you are using the Services on behalf of, and under the direction of, a company, entity, or organization (each a “Subscribing Entity” or “Customer”), then you represent and warrant that: (i) you are an authorized representative of that Subscribing Entity with the authority to bind such entity to this TOU, (ii) you agree to be bound by the TOU individually and on behalf of such Subscribing Entity, (iii) your access to the Services may be governed by a separate Subscription Agreement entered into by the Subscribing Entity, to which you and/or the applicable Subscribing Entity are bound and (iv) you may be held responsible for your own actions, and the Subscribing Entity may also be held responsible for your actions. You further represent and warrant that the Subscribing Entity is not an Archer Competitor (as defined herein), and that neither you nor the Subscribing Entity are using the Services for or on behalf of an Archer Competitor.
4. Member Registration
By accessing the Services, you are always a “User”, but you do not automatically become an Archer Member. In order to become an Archer member (“Member”), you are required to complete a registration process. You certify, represent and warrant that the information you provide therein is true, accurate, complete, current, and that it belongs to you. You shall keep your information complete and up-to-date at all times. In order to access certain Services as a Member, you must sign in with a unique user name or email address and password. Failure to maintain your registration information may cause your access to the Services to be interrupted, suspended, or terminated. You are responsible for monitoring your account, changing your password periodically and notifying Archer immediately of any unauthorized use or breach of security of your password.
5. Data, Licenses, and other Intellectual Property Rights
A. Database. Archer’s proprietary database (the “General Database”), available on the Archer Platform, contains, among other things, building information, historical and current financial information (including, but not limited to rental rates, operating costs, capital expenditures, occupancy and lease information), sale transaction information (including, but not limited to price, buyer, seller, cap rate and NOI) and related property, tenant and market information. Each Customer, and each User authorized under the terms of the Subscription Agreement to access the Services (“Authorized User”), can access a specific branch of the General Database (“Branched Database”). As Members, Customers and Authorized Users may contribute to and access the Branched Database in accordance with the terms of the Customer License; however, Archer retains all proprietary and intellectual property rights in and to the Archer Platform, including the General Database and Branched Database, and Customer and Authorized Users do not retain any ownership or intellectual property rights in and to the Archer Platform, including the General Database and Branched Database.
B. Data. Customer and Authorized Users may update the Branched Database with (i) general information and data regarding attributes of real estate properties (“General Property Data”), and (ii) any other information related to real estate, including without limitation, investment strategies, financial data, transaction history, tenant information (“Proprietary Data”, and together with the General Property Data, the “Customer-provided Data”). As between Customer and Service Provider, Customer owns all right, title and interest, including all intellectual property rights, in and to the Customer-provided Data. Customer and each Authorized User represents and warrants that they have sufficient rights to share the Customer-provided Data with Archer via the Branched Database and provide the license to such data to Archer as set forth herein, and that Archer can use the Customer-provided Data in accordance with the rights and restrictions set forth in the Applicable Agreements.
C. Archer Proprietary Rights. The Service is owned and operated by Archer. Archer retains all proprietary and intellectual property rights to the Archer Platform, including in and to the General Database. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, Site, and all other elements of the Service (“Materials”) provided by Archer are protected by intellectual property and other laws. All Materials included in the Service are the property of Archer or its third-party licensors. Except as expressly authorized by Archer, you may not make use of the Materials. Archer reserves all rights to the Materials not granted expressly in this Agreement.
E. Customer License. Subject to Customer’s and Authorized User’s ongoing compliance with the Applicable Agreements, Archer grants each Customer and Authorized User a non-exclusive, non-transferable, non-sublicensable license, during the Term (as defined in the applicable Subscription Agreement), to access the Archer Platform, including the Branched Database, solely for Customer’s internal business purposes and as otherwise allowed by the Applicable Agreements (the “Customer License”). Except as expressly set forth herein, Archer does not grant to Customer or any Authorized User any rights in or to the intellectual property of Archer or any other party. In the event that Customer or any Authorized User breaches any provision of the Applicable Agreements, the Customer License will immediately terminate.
F. License to Archer. Customer and each Authorized User grants Archer and its affiliates a worldwide, irrevocable, sublicensable, perpetual, royalty-free license (a) to use all Customer-provided Data to perform the Services contemplated by the Applicable Agreements during the Term, (b) to use and incorporate the General Property Data into the General Database, (c) to use Customer-provided Data, following anonymization and aggregation, to update and improve Archer’s products and services (“Archer Business Purposes”), (d) to collect and use information related to Customer’s and User’s access to the Archer Platform (“Usage Data”) for Archer Business Purposes, and (e) to exploit without restriction all feedback related to the Services provided by Customer and Users (collectively, the “Archer License”). The Archer License shall survive any termination of Customer’s or User’s relationship with Archer.
A. Confidential Information. Archer, Customer, and each User acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning another party that such party considers to be Confidential Information. "Confidential Information" means all information, in any form, furnished or made available directly or indirectly by a disclosing party to a receiving party that is marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be confidential information. Each receiving party will maintain the disclosing party’s Confidential Information as confidential and use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts, to prevent disclosure to unauthorized parties the Confidential Information of the disclosing party. The receiving party shall not use the disclosing party’s Confidential Information for any purpose other than as contemplated or permitted by the Applicable Agreements. Each receiving party agrees that because of the unique nature of such Confidential Information, any breach of this Section 6 would cause the disclosing party irreparable harm, and money damages and other remedies available at law in the event of a breach would not be adequate to compensate the disclosing party for any such breach. Accordingly, each receiving party agrees that the disclosing party will be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance, as a remedy for any such breach. Such relief will be in addition to, and not in lieu of, all other remedies available to the disclosing party, whether under these Terms, at law or in equity. Proprietary Data shall be considered Confidential Information, and may only be used in accordance with the Applicable Agreements.
B. Exceptions. Confidential Information shall not, however, include any information that receiving party can establish: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to the receiving party by the disclosing party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure to the receiving party by the disclosing party through no action or inaction of the receiving party; or (iii) is in the rightful possession of receiving party without confidentiality obligations at the time of disclosure by the disclosing party to the receiving party as shown by receiving party’s then-contemporaneous written files and records kept in the ordinary course of business.
7. Prohibited Conduct
By using the Service, you agree not to:
A. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
B. systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
C. trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
D. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
E. enter trade secrets or illegal or improper information in or through the Services (either directly through the Services or via any transmission to Archer, including email), including, without limitation, the following: Information that is known to be false, inaccurate, incorrect, incomplete, inexact, outdated or otherwise wrong; Information that advocates or encourages conduct that could constitute a criminal offense; Information that is actionable or may subject Archer to legal action or liability of any kind;
F. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
G. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
H. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
I. use any information obtained from the Site in order to harass, abuse, or harm another person;
J. make improper use of our support services or submit false reports of abuse or misconduct;
K. engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools;
L. delete the copyright or other proprietary rights notice from any content;
M. interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site;
N. except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
O. except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
P. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
Q. access Archer’s Platform for, at the direction of, or on behalf of (directly or indirectly) any company whose primary business to provide off-market acquisition assistance, investor to deal matchmaking or automated underwriting (an “Archer Competitor”), or to build a competitive product;
R. attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
8. Site Management
We reserve the right, but not the obligation, to: (1) monitor the Archer Platform for violations of the Applicable Agreements; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or the Applicable Agreements, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) the Services; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Archer Platform or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Archer Platform in a manner designed to protect our rights and property and to facilitate the proper functioning of the Archer Platform.
9. Sources of Data and Third-Party Content
Our Members build and maintain portions of the Archer Platform. Archer may aggregate, supplement or enhance the Archer Platform from established, reputable sources and trusted data suppliers. Archer may also add to the Archer Platform by collecting and including openly and freely available property information. Data providers may only contribute information to Archer that they have a legal right to provide.
The Archer Platform may contain data that is readily available without restriction from any number of different data sources, including:
A. Public records: Records created and maintained by government agencies or non-governmental sources that is open for public inspection and use.
B. Non-public available information provided to Archer by a Member authorized to share such information: Information that is privately owned and is not available to the general public or that is generally offered for a fee for use and redistribution without restriction.
C. Openly available information: Information that has been made available without restriction by a property’s representatives, typically for their own convenience, competitive advantage, business benefit or other commercial purposes.
D. Derived information: Partial or derived information from any combination of the above sources that is assembled, aggregated, appended, calculated or associated together.
The Archer Platform may contain (or you may be sent via the Site) links to other websites ("Third-Party Websites") as well as data, forecasts, opinions, estimates, projections, articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
If you have any questions or concerns about the Archer Platform, including the General Database, or any Third-Party links you may contact Archer by e-mail at email@example.com.
A. Modification of these Terms. We reserve the right to change these Terms at any time for any reason. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 10, these Terms may be amended with respect to a Customer and its Authorized Users only by a written agreement signed by authorized representatives of Archer and the Customer. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
B. Termination of Use; Discontinuation and Modification of the Service; Survivability. If a Term is specified in an applicable Subscription Agreement, your right to use the Services will expire at the end of such Term. If you violate any provision of the Applicable Agreements, our permission allowing you, and any applicable Subscribing Entity, to use the Service will terminate automatically. In addition, Archer may in its sole discretion suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to the Service. Upon termination of your access to the Services or your relationship with Archer, Sections 2, 3, 5, 6, 10, 11, 12, 13 and 14, and any other provision of the Applicable Agreements that contemplate performance or observance subsequent to termination or expiration of the Applicable Agreements, will survive.
C. Destruction of Materials. Upon termination of your access to the Services or your relationship with Archer, you must return, delete, or destroy all Archer data, information, media or other materials, and remove all elements of the Archer Platform, Archer data and/or cash flows stored in enterprise databases, either provided to you or downloaded and stored by you, except for archival information required for statutory or regulatory purposes. Furthermore, you may not use the Service or Archer data for any purpose, including research or reporting purposes.
D. Restrictions following termination: If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Archer, its subsidiaries, affiliates, assigns and successors, and its and their respective officers, directors, employees, consultants, and agents (together, the “Archer Persons”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of the Applicable Agreements, any representation, warranty, or agreement referenced in the Applicable Agreements, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; Limitation of Liability
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND THE ARCHER PLATFORM ARE PROVIDED “AS IS”, “WITH ALL FAULTS AND DEFECTS”, AND ON AN “AS AVAILABLE” BASIS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ARCHER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY ARISING OUT OF CONSUMER PRIVACY CLAIMS. ARCHER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ARCHER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ARCHER PERSONS OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ARCHER PERSONS OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE AND RELY ON ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY LOSSES OR DAMAGES SUFFERED, INCLUDING WITHOUT LIMITATION LOSS OF INVESTMENT, LOSS OF FUNDS, LOSS OF RETURNS, DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING YOUR DATA.
YOU ACKNOWLEDGE AND AGREE THAT ANY ADVICE, DATA, ESTIMATES, FORECASTS, PROJECTIONS, CONTENT OR INFORMATION CONTRIBUTED TO, ACCESSIBLE ON, OR OBTAINED FROM, THE ARCHER PLATFORM, DATABASE, AND/OR SERVICES, WHETHER COLLECTED, PROCESSED, PARSED, TRANSCRIBED, TRANSMITTED, TRANSFORMED, ANALYZED OR DEVELOPED, IN WHOLE OR IN PART, BY YOU OR BY ANY ARCHER PERSON, MEMBER, DATA PROVIDER, OR THIRD-PARTY, (I) MAY BE INACCURATE, INCOMPLETE, INCORRECT, UNINFORMED, UNRELIABLE, UNVERIFIED, MISREPRESENTED, OVEREMPHASIZED, OPINION, OR OUTDATED; (II) MAY BE SUBJECT TO ERRORS, OMISSIONS, AND DELAYS; (III) IS NOT MEANT TO BE THE SOLE BASIS FOR MAKING DECISIONS, BUT JUST ONE SOURCE OF INFORMATION, TO BE VERIFIED AND COMPARED WITH OTHER SOURCES; AND (IV) IS NOT GUARANTEED IN ANY WAY AND WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY ON THE BASIS OF SUCH INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT PROJECTED MARKET AND FINANCIAL INFORMATION, CONCLUSIONS AND OTHER INFORMATION PROVIDED TO YOU THROUGH THE SERVICE ARE NOT GUARANTEED FORECASTS. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT AUTOMATED VALUATION MODELS ATTEMPT TO ESTIMATE CURRENT AND FORECASTED INFORMATION RELATED TO A PIECE OF REAL PROPERTY USING TECHNOLOGY, INCLUDING WITHOUT LIMITATION MARKET VALUE, COMPARATIVE DATA, GROWTH RATES, VACANCY RATES, RENOVATION RETURNS, EXIT PRICING, INCOME AND EXPENSES. ANY ESTIMATED VALUE IS NOT AN APPRAISAL AND USE OF ESTIMATED VALUES IS DONE AT YOUR SOLE RISK.
THE ARCHER PERSONS DO NOT PROVIDE ANY TAX, LEGAL, FINANCIAL OR ACCOUNTING ADVICE. ALL ADVICE, INFORMATION, CONTENT OR MATERIALS OBTAINED FROM THE SERVICE OR ARCHER PLATFORM HAS BEEN PREPARED FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND DOES NOT AND IS NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED ON FOR, TAX, LEGAL, FINANCIAL OR ACCOUNTING ADVICE. YOU SHOULD CONSULT YOUR OWN TAX, LEGAL, FINANCIAL AND ACCOUNTING ADVISORS BEFORE MAKING ANY DECISION OR ENGAGING IN ANY TRANSACTION.
ARCHER DOES NOT INDEPENDENTLY VERIFY THE COMPLETENESS, ACCURACY OR AUTHENTICITY OF ANY INFORMATION AVAILABLE ON THE SERVICE, ARCHER PLATFORM, OR DATABASE. OUR SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM OF ERRORS WITHIN THE SERVICES, ARCHER PLATFORM OR DATABASE SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY MATERIAL, REPRODUCIBLE, CORRECTIBLE ERRORS IN SUCH SERVICES, ARCHER PLATFORM OR DATABASE, AT OUR SOLE EXPENSE, FOLLOWING OUR RECEIPT OF WRITTEN NOTICE FROM YOU, SPECIFYING IN DETAIL ANY SUCH ERRORS. NOTWITHSTANDING THE FOREGOING, WE MAKE NO GUARANTEE THAT EACH ANY EVERY DISCREPANCY IN THE SERVICES, ARCHER PLATFORM OR DATABASE WILL HAVE A CORRESPONDING REMEDY OR WARRANT ANY ADJUSTMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ARCHER PERSONS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ARCHER PERSON HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ARCHER PERSONS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ARCHER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 12 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. ARCHER DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT ARCHER IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
13. Disputes Resolution and Arbitration
A. Dispute Resolution. In the interest of resolving disputes between you and Archer in the most expedient and cost effective manner, you and Archer agree that every dispute arising in connection with the Applicable Agreements will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Applicable Agreements, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the Term. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE APPLICABLE AGREEMENTS, YOU AND ARCHER ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
B. Arbitrator. If you (or the applicable Subscribing Entity) and Archer are unable to resolve a dispute through informal negotiations, the dispute (except those disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in or near San Francisco, California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
C. Findings and Conclusions. The arbitrator shall, at the time of rendering a judgment and award, prepare and distribute to the applicable parties an opinion describing the bases for such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator shall be final and binding on the applicable parties, and judgment thereon may be entered in a court of competent jurisdiction. The applicable parties shall share equally the charges of the arbitration. The arbitrator may award reasonable attorneys’ fees and expenses to the prevailing party to the extent permitted under applicable law and as warranted under the circumstances. The arbitrator may also award indirect or consequential, exemplary, punitive or special damages in accordance with the terms of the Applicable Agreements.
D. Courts. If for any reason, a dispute proceeds in court rather than arbitration, the dispute shall be commenced or prosecuted in the state and federal courts located in San Francisco County in the State of California, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from the Applicable Agreements.
E. Limitation Period. In no event shall any dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any dispute falling within that portion of this provision found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
F. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Archer may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing.
G. No Class Actions. The Parties agree that any arbitration shall be limited to the dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
H. Modifications to this Arbitration Provision. If Archer makes any future change to this arbitration provision, other than a change to Archer’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Archer’s address for Notice of Arbitration, in which case your account with Archer will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will Archer.
I. Enforceability. If Section 13(G) is found to be unenforceable or if any other provision of this Section 13 (other than Section 13(D)) is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 13(D) will govern any action arising out of or related to these Terms, and the remaining provisions this Section 13 will be null and void.
A. General Terms. These Terms, any applicable Subscription Agreement, and any other agreements or policies expressly incorporated by reference into the Applicable Agreements, constitute the entire and exclusive understanding and agreement between you and Archer regarding your use of the Service. You may not assign or transfer the Applicable Agreements or your rights under the Applicable Agreements, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign the Applicable Agreements at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of the Applicable Agreements, or any provision of the Applicable Agreements, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in the Applicable Agreements is for convenience only and will not have any impact on the interpretation of any provision. Throughout the Applicable Agreements the use of the word “including” means “including but not limited to”. If any part of the Applicable Agreements is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. You hereby waive any and all defenses you may have based on the electronic form of this TOU and the lack of signing by the parties hereto to execute this TOU.
B. Governing Law. The Applicable Agreements, and any matters arising from or in connection with the Applicable Agreements, are governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be entirely performed within the State of Delaware, without regard to its conflict of law principles.
C. Severability. If any provision of an Applicable Agreement conflicts with the law under which such Applicable Agreement is to be construed or is held invalid by a competent authority, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable laws.
D. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
E. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Our notice may be sent to you at any account or address we have on file for you. You are responsible for keeping your account details and addresses up-to-date.
F. Notices to Archer: All notices, requests, demands and determinations to Archer pertaining to the Applicable Agreements must be in writing to the address provided below, and will be deemed duly given:
a. when delivered personally (against a signed receipt),
b. on the designated day of delivery (other than a weekend or US Federal government holiday) after being timely given to an express overnight courier with a reliable system for tracking delivery, or when delivered electronically, or
c. four (4) Business Days after the day of mailing, when mailed to an address in the United States by United States mail, registered or certified mail, return receipt requested and postage prepaid.
Archer RE Inc.
1179 NW Londonderry Place
Bend, OR 97703
G. Notice to California Residents. If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
H. No Support. Except as otherwise provided for in an applicable Subscription Agreement, we are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
I. Corrections. There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
J. International Use. The Service is intended for users located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
K. Order of Precedence. In the event of a conflict or inconsistency between any provision of these Terms and the Subscription Agreement, the provisions of the Subscription Agreement will take precedence over any conflicting provisions in this TOU.