PLATFORM TERMS AND CONDITIONS
INCLUDING
AVENDRA SUPPLY CHAIN SERVICES AGREEMENT
These Terms and Conditions (“Terms”) form a legally binding agreement between you, your company, and any affiliated entities you represent (collectively, “Customer,” “you,” or “your”) and Raiven, Inc. (“Raiven,” “we,” “us,” or “our”).
In addition, as more particularly set forth in Section 4 below, these Terms form a legally binding commitment by Customer to Avendra, LLC (“Avendra”), which, upon acceptance by Avendra, shall be severable from these Terms and comprise a legally binding agreement between Customer and Avendra directly. Accordingly, the Agreement (as set forth and defined in Section 4 below) shall be deemed a separate, direct agreement between Customer and Avendra upon acceptance of the same by Avendra as described therein and commencement by Avendra of the Services (as defined in the Agreement).
These Terms consist of:
Each component governs its respective subject matter. In the event of a conflict:
By clicking acceptance, creating an account, accessing, or using the Raiven platform, software, procurement tools, integrations, or services (collectively, the “Platform”), you confirm that you have authority to bind Customer and agree to be legally bound by these Terms, inclusive of the Agreement with Avendra therein.
Raiven provides technology, procurement coordination, and supply chain enablement services. Raiven does not manufacture, distribute, or sell products. All product purchases occur directly between Customer and third-party suppliers.
1. Platform
Customer’s access to and use of Raiven’s purchasing and project management software (the “Raiven System” or “Platform”) shall be governed by the Raiven Platform Subscription Agreement attached as Exhibit B (the “PSA”), which is incorporated herein by reference.
2. Assist
Raiven may provide administrative procurement coordination services (“Raiven Assist”) in connection with Customer’s use of the Platform. Raiven Assist services are facilitation services only and do not alter the buyer-seller relationship between Customer and Suppliers.
3. Order
Customer authorizes Raiven, when requested through the Platform, to transmit purchase orders or related procurement instructions to Suppliers on Customer’s behalf. Customer remains solely responsible for all purchase obligations and payment to Suppliers.
4. Conflict.
In the event of a conflict between this Section 3 and Exhibit B, Exhibit B shall govern with respect to Platform subscription and technology matters.
Customer acknowledges that Raiven is a for-profit entity and may receive rebates, administrative fees, allowances, marketing funds, incentives, or other compensation from Suppliers or manufacturers in connection with Customer’s purchases through Raiven Programs.
Such compensation may vary by supplier, product category, or program. Customer agrees that Raiven is not obligated to disclose the specific amount of compensation received from any Supplier unless otherwise required by law or expressly agreed in writing.
Nothing herein guarantees that pricing available through Raiven Programs will be the lowest available in the marketplace.
Customer acknowledges that access to and use of the Raiven Platform and related software is governed exclusively by the Raiven Platform Subscription Agreement attached as Exhibit B (the “PSA”), which is incorporated herein by reference. All rights, title, and interest in and to the Platform, including all related software, technology, documentation, enhancements, and improvements, remain with Raiven or its licensors as set forth in the PSA.
To the extent Customer participates in Raiven Programs or Avendra Programs through the Platform, Customer authorizes Raiven to use aggregated and de-identified purchasing and usage data derived from such participation for analytics, benchmarking, supplier negotiations, program optimization, and commercial purposes, provided that such data does not identify Customer. Except as expressly provided herein or in the PSA, no ownership rights are transferred to Customer.
Customer agrees to:
Customer remains solely responsible for all purchase decisions, product specifications, and payment obligations to Suppliers.
Raiven may suspend or terminate Customer’s access to the Platform or Raiven Programs immediately upon:
Suspension of Platform access shall not relieve Customer of payment obligations to Suppliers for Products already ordered.
Raiven shall not be liable for any delay or failure to perform resulting from causes beyond its reasonable control, including but not limited to acts of God, natural disasters, supply chain disruptions, labor disputes, governmental actions, internet outages, cybersecurity incidents not caused by Raiven’s gross negligence, or failures of third-party service providers.
AVENDRA SUPPLY CHAIN SERVICES AGREEMENT
(Raiven Contractor Online SCSA)
This Avendra Supply Chain Services Agreement (this “Agreement”) is entered into between Avendra, LLC, a Delaware limited liability company with an address at 540 Gaither Road, Suite 200, Rockville, Maryland 20850 (“Avendra”), and the company or legal entity accepting these Terms through the Raiven platform (“Customer”), acting for itself and on behalf of its subsidiaries and Affiliates, as defined below, collectively as the context dictates.
For purposes of this Agreement:
Customer represents that the individual accepting this Agreement, through the Platform or other Raiven enrollment process, has authority to bind Customer to the terms set forth herein for the benefit of Avendra and Raiven, as applicable.
Customer authorizes and directs Raiven to provide the foregoing information, including a copy of this Agreement together with evidence of Customer’s acknowledgment of acceptance of this Agreement, to Avendra; it being acknowledged and agreed that Avendra shall not be required commence the Services (as defined in this Agreement) until Avendra acknowledges receipt of the same.
Customer purchases and/or provides goods and services in connection with the building trades, facility maintenance, equipment retrofits, service and maintenance, cleaning, construction, management, operation and/or servicing of certain client locations, defined as Properties below. Avendra has entered into supply arrangements (“Avendra Programs”) with manufacturers, suppliers and distributors (“Suppliers”) of goods, equipment, supplies and services (collectively, the “Products”) on terms negotiated by Avendra. Under the terms of this Agreement, Avendra shall provide Customer with access to the Avendra Programs in order to purchase Products for the Properties from Avendra’s Suppliers (the “Services”).
(a) Each individual Avendra Program is classified under one of the several broad bundles of programs set out in Exhibit A to this Agreement. Customer shall be entitled to purchase Products offered through the individual Avendra Programs which are included within the program bundles on Exhibit A (“Program Bundles”).
(b) Throughout the Term, Customer shall use its best efforts to purchase from Suppliers at least a preponderance of the Products required by the Properties, which meet the form, fit, and function (the “Specifications”) required by Customer and the Properties.
Customer authorizes Raiven to release to Avendra such information concerning Customer and the Properties as may be reasonably necessary for Avendra to perform its obligations in provisioning supplier access under its agreement with Raiven. In addition, Customer authorizes Avendra to release to Raiven Customer and/or Property data obtained by Avendra in the course of its performance, despite the fact that such information may be deemed confidential information pursuant to Customer’s subscription agreement with Raiven.
(a) Information regarding how to access the Suppliers and the Products available under individual Avendra Programs is available through the supply chain software solutions made available through the Raiven Platform, or its replacement, if applicable, as established by Avendra. Customer access to Avendra Programs is subject to Customer compliance with the applicable terms and conditions and the availability of the Products from Suppliers.
(b) As part of an on-going continuous improvement program, and in order to maintain its customer value, Avendra updates and modifies, as required, the terms and conditions of the Avendra Programs, the Products offered under the same and, in some cases, substitutes existing Suppliers with new manufacturers, suppliers or distributors. Avendra will use commercially reasonable efforts to notify Customer of any such changes likely to have a material impact on Customer’s operations.
The relationship between Customer and Suppliers shall be that of buyer and seller. Customer agrees that the Suppliers have the sole responsibility for performing the sale of Products, and any and all Product warranties and other representations are made by Suppliers directly to Customer. Avendra is not a Supplier and does not guarantee the performance of any Supplier or Product and Customer’s exclusive remedy in case of a Supplier’s failure to perform or an issue or claim arising out of the Products shall be solely against Supplier. Customer shall be responsible for establishing its own creditworthiness with each Supplier and shall be exclusively liable to Supplier for payment when due of the invoice price for all Products sold to Customer. Customer shall complete, execute and promptly return to Avendra the appropriate “Standard Credit Applications”, copies of which are available on request, which shall be made available to Suppliers to assess and establish Customer creditworthiness. Customer understands that its failure to complete, execute and promptly return the appropriate Standard Credit Application may result in limitations on or the denial of credit offered by Suppliers to Customer.
Subject to acceptance by Avendra, the term of this Agreement shall (a) commence on the Effective Date and remain in effect for a period of two (2) years thereafter (the “Initial Term”), and (b) shall renew automatically for successive renewal terms of one (1) year each (collectively with the Initial Term, the “Term”), commencing on the day following the expiration of the Initial Term or any anniversary thereof, unless either Customer or Avendra signifies its intent not to so renew by notice given to the other and Raiven in accordance with the Notice section of this Agreement, provided not less than sixty (60) days prior to the end of the then-current Term. Notwithstanding the foregoing to the contrary, at the end of the first six (6) months of the Initial Term (the “Trial Period”), either Customer or Avendra during the sixty (60) day period immediately following the Trial Period may elect to terminate this Agreement by notice given to the other and Raiven in accordance with the Notice section of this Agreement, at no cost or penalty.
Customer, on behalf of itself and the Properties, agrees to the Avendra Supply Chain Services Agreement General Terms and Conditions set forth on Schedule 1 to this Agreement and incorporated by reference as if fully set forth herein in their entirety.
(a) “Affiliate” of any specified Person shall mean any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person.
(b) “Authorized Service Area” shall mean all fifty (50) states of the United States of America.
(c) “Control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or through one or more other Persons, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
(d) “Person” means any individual, corporation, limited liability company, joint stock company, partnership, joint venture, association, organization, governmental entity, business or other trust or any other entity or organization of any kind or character.
(e) “Property” or “Properties" shall mean properties that are being constructed, managed, operated, maintained and/or serviced by Customer for as long as such property continues to be constructed, managed, operated, maintained and/or serviced by Customer and which is located in the Authorized Service Area, or properties which Customer and Avendra otherwise agree may be included as a Property for purposes of this Agreement.
Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings therein stated.
Customer represents, warrants, and acknowledges the following:
(a) Customer has full power and authority, and has been duly authorized, on behalf of itself and the Properties, to enter into and perform its obligations under this Agreement. Customer shall notify Avendra in writing in advance of any changes (a) in ownership of Customer; or (b) of its authority to make procurement decisions on behalf of the Properties;
(b) as of the Effective Date, Customer is not an Avendra customer and it is not otherwise participating, or entitled to participate, in any Avendra Programs as a result of a contractual relationship with any other Avendra customer;
(c) Customer understands that a multitude of factors beyond the control of Avendra and/or of a promoter introducing Customer to Avendra (a “Promoter”) will factor into the Customer’s actual cost reductions or savings resulting from Customer’s purchases from Suppliers. Customer acknowledges and accepts that neither Avendra nor any Promoter guarantees any specific amount of cost savings;
(d) Customer does not participate in the purchasing programs of any group purchasing organization, or any other entity, which compete with the Avendra Programs;
(e) Customer is not entering into this Agreement for any purpose that would contravene or circumvent applicable law; Customer is, as of the Effective Date, in compliance with applicable law; and Customer will remain in compliance with applicable law throughout the Term;
(f) Customer is in the business of purchasing and/or providing goods and services to third party customers in connection with the maintenance, cleaning, construction, management, operation and/or servicing of Properties owned or operated by such third party customers. Customer will not resell products or services obtained through the Avendra Programs to third parties other than to its customers for the benefit of the Properties;
(g) Customer has obtained, and will maintain throughout the Term, all required licenses and permits to provide services to its customers and their Properties;
(h) Customer will not compete, either directly or indirectly, with the procurement and supply chain services provided by Avendra to its customers.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER, REGARDLESS OF THE BASIS ON WHICH THE COMPLAINING PARTY IS ENTITLED TO CLAIM DAMAGES, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF FORESEEABLE OR EVEN IF THE PARTY CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement may be terminated, in addition to other remedies at law or equity, by the non-defaulting party on five (5) business days prior notice to the defaulting party if the defaulting party fails to perform a material term hereof, including without limitation compliance by Customer with applicable Avendra Program terms and conditions communicated to Customer, and the same is not cured within thirty (30) days after notice from the non-defaulting party to the defaulting party specifying the nature of such failure. Notwithstanding the foregoing to the contrary, Avendra may immediately terminate this Agreement in the event of a breach by Customer of any of the representations, warranties or acknowledgements contained in Section 3, above. Neither party shall be liable to the other for failure to perform caused by force majeure.
Customer shall indemnify, defend and hold Raiven, Avendra, their parents, subsidiaries, affiliates, officers, directors and employees, harmless from and against all costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) to the extent arising out of or in connection with any third party claim (collectively “Claims”) resulting from a breach of this Agreement by Customer or the failure of any Customer representation or warranty provided hereunder.
Customer shall not assign or delegate this Agreement, any claims for money damages arising hereunder, any part of Customer’s duties and responsibilities hereunder, and/or any rights or obligations hereunder without the prior written consent of Avendra, and any purported such assignment or delegation lacking such consent is void. Notwithstanding the foregoing, either party shall have the right to pledge payments due hereunder for bona fide financing purposes or to assign this Agreement to any of the assigning party’s affiliates or to a successor entity in the event of a merger, reorganization, sale of substantially all assets or other material change of ownership involving such assigning party. The assigning party shall notify the other party of any such assignment within thirty (30) days from the effective date thereof.
No waiver of any breach or default of the terms hereof shall (a) be effective unless in writing and agreed to by the waiving party, or (b) constitute a waiver of any other or further breach or default hereof.
This Agreement, together with all schedules and exhibits, (i) constitutes the entire understanding between the parties as to the subject matter hereof and supersedes all prior and contemporaneous understandings of the parties relating to such subject matter, and (ii) may not be modified except by a written agreement, which may include electronic acceptance or acknowledgment, agreed to by the parties.
For clarity, electronic records, electronic communications, and electronic acceptances shall be deemed writings for purposes of this Section.
All obligations, rights and benefits under this Agreement that have accrued, but have not yet been fully performed or paid, as of the time immediately preceding the expiration or termination of this Agreement, shall survive such expiration or termination until fully performed. The provisions of this Agreement that are necessary for the full enjoyment and enforcement of the obligations, rights and benefits of this Agreement accruing prior to such expiration or termination shall survive such expiration or termination.
All disputes arising out of this Agreement shall be determined pursuant to the laws of the State of New York, without giving effect to its principles of conflicts of laws. For purposes of determining such disputes, each party may bring a legal action or proceeding exclusively in and irrevocably submits to the exclusive jurisdiction of (i) the Courts of the State of New York (the “State Courts”), and (ii) if federal jurisdiction exists, the United States District Court for the Southern District of New York (the “Federal Court”), it being understood, however, that judgments, orders, or decrees by or from the State Courts or the Federal Court may be appealed to or enforced in any competent court. Each party waives, to the fullest extent permitted by law, (A) any objection that it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement in the State Courts or the Federal Court, and (B) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
All legal notices, requests, and formal demands under this Agreement (excluding routine operational communications) must be in writing.
Notices to Customer may be provided by Avendra or Raiven via:
Such notices will be deemed given on the date sent or posted; provided that notices sent via overnight courier shall be deemed given the later of one (1) business day after being sent or the date of confirmed delivery via such courier’s tracking system.
Notices to Raiven must be sent by email and by one additional method (courier or certified mail) to ensure delivery:
Raiven, Inc.
Attn: Legal Department
Email: [email protected]
100 Spectrum Center Drive, Suite 870, Irvine, CA 92618
Notices to Raiven will be deemed given upon actual receipt.
Notices to Avendra must be sent by email and by one additional method (courier or certified mail) to ensure delivery:
Avendra, LLC
Attn: Legal Department
Email: [email protected]
540 Gaither Rd, Suite 200, Rockville, MD 20850
Notices to Avendra will be deemed given upon actual receipt.
Customer is responsible for keeping its account contact information current. Avendra is not responsible for notices not received due to outdated contact information.
This Agreement is accepted by Customer through electronic means, including by clicking an acceptance button, checking an acceptance box, or otherwise indicating assent through the Raiven platform or website as part of the Terms. Such electronic acceptance constitutes Customer’s legally binding agreement to the terms of the Agreement.
Customer agrees that its electronic acceptance has the same legal effect as a handwritten signature and that no physical signature or paper counterpart is required. Raiven’s records of electronic acceptance of the Terms, including associated timestamps and account information, shall be deemed conclusive evidence of Customer’s agreement to the terms of this Agreement, absent manifest error.
The parties agree that this Agreement may be formed and enforced by electronic means and that, with respect to Customer’s agreement of the terms of this Agreement, any applicable laws requiring a signature or writing are satisfied by Customer’s electronic acceptance as described herein.
Program Bundles
5. RAIVEN SUPPLIER ACCESS AGREEMENT
Customer acknowledges that, in addition to Avendra Programs, Raiven may provide Customer access to supplier arrangements negotiated directly by Raiven (“Raiven Programs”) with manufacturers, suppliers, and distributors (“Raiven Suppliers”).
Except as otherwise expressly stated in this Section 4A, the terms, conditions, representations, warranties, disclaimers, indemnities, limitations of liability, default provisions, and general terms set forth in:
are hereby incorporated by reference and shall apply mutatis mutandis to Raiven Programs and Raiven Suppliers, with the following substitutions:
For clarity, the provisions of Section 3 (Raiven Platform and Raiven Assist Services) and Exhibit B apply to all Raiven Programs in addition to the incorporated terms described herein.
For clarity, Raiven Programs are separate from Avendra Programs and do not create any agency, partnership, or joint venture between Avendra and Raiven.
Nothing in this Section 5 modifies or amends the Avendra Agreement. In the event of a conflict between this Section 5 and Section 4, Section 4 shall govern solely with respect to Avendra Programs.
This Platform Subscription Agreement (the "Agreement") is made and entered into as of the date Customer accepted the Terms by Raiven, Inc., a Delaware corporation, with offices located at 100 Spectrum Center Drive, Suite 870, Irvine, California 92618 (“Raiven”) and Customer.
2. Authorized Users.
(a) Customer shall designate the Authorized Users who shall be given access to the Platform; provided, however, that all Authorized Users must be employees of Customer.
(b) Subject to the terms, limitations, conditions of this Agreement, Raiven grants Customer and its Users a subscription for use of the Platform solely for Customer’s own internal business purposes and in conjunction with the Suppliers.
(c) Technical Support is available to Customers at (888) 272-0090 or at the following email address: [email protected].
3. Term.
(a) The Term begins on the date of acceptance of Terms and ends upon notification by either Party of its desire to terminate for convenience, subject to the terms and conditions herein.
(b) For clarity, the Term identified as part of the License Fee payment stream per Section 4.0 below shall supersede any other Term commitments made herein. If, for example, the Customer has selected a month-to-month License Fee, then the corresponding Term shall be month-to-month. If, for example, the Customer has selected an annual License Fee, then the corresponding Term shall be annual from the date of payment.
(c) Either party may terminate this Agreement (and any Scope(s) of Work then in effect) for “Cause” (i) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach; or (ii) immediately upon notice if the other party (A) is in breach of any of its obligations with respect to confidentiality, or misuse or infringement of the Intellectual Property Rights of the other; or (B) is subject to any events of insolvency, any form of voluntary or involuntary insolvency administration or liquidation, or entering into a scheme, proceeding, or (C) voluntary arrangement with its creditors for partial discharge of indebtedness.
4. License Fee.
(a) During the Term, Customer and its Authorized Users will be assessed a monthly recurring fee for access and use of the Platform which Customer acknowledges by entering payment information during enrollment via www.raiven.com or its corresponding branch URL (the “Membership Fee”). Raiven reserves the right to adjust the Membership Fee from time to time, at its sole discretion, by providing thirty (30) days’ notice to Customer.
5. License Terms and Conditions. Customer, on behalf of itself and the Authorized User, agrees to the License Terms and Conditions set forth on Schedule A to this Agreement.
6. Raiven Rebate Program
(a) Program Overview. Certain, but not all, subscriptions offered by Raiven may include sharing rebates received for spend with Qualified Suppliers as an offset to their subscription or license fee. To be eligible, a Customer must be an active Customer for twelve (12) consecutive months and must be current in their associated subscription payments. As part of the Raiven Rebate Program (the “Program”), Raiven may allocate a portion of certain allowances, rebates, incentives, or similar payments (“Allowances”) received by Raiven from participating suppliers based on customer purchasing activity through the Raiven platform toward an offset of a participating customer’s subscription fees (the "Subscription Offset"). Participation in the Program does not alter the pricing or payment obligations associated with any Raiven subscription plan.
(b) Eligible Supplier Purchases. Only purchases made with suppliers that Raiven designates as participating or “Raiven Certified Suppliers” and for which Raiven receives Allowances under a contractual arrangement (“Qualified Suppliers”) may be considered when determining eligibility for a subscription offset. Customers must spend a minimum of $150,000 over the twelve-month subscription period in order to be eligible for any Subscription Offset. Raiven may, at its sole discretion and without notice, add, remove, or modify the list of Qualified Suppliers or the categories of purchases that may qualify for consideration under the Program.
(c) Allowance Sharing and Offset Determination. Raiven may allocate to a participating customer a portion of Allowances received by Raiven that are attributable, in whole or in part, to the customer’s purchasing activity with Qualified Suppliers. The methodology used by Raiven to determine any Subscription Offset shared with customers, is determined solely by Raiven and may take into account a variety of factors including, but not limited to:
Raiven does not disclose supplier allowance rates, program formulas, or allocation methodologies. Participation in the Program does not guarantee that any particular purchase, supplier, or level of spend will result in a Subscription Offset.
(d) Timing of Subscription Offset. Any Subscription Offset earned under the Program will be calculated following completion of the customer’s first twelve (12) months of continuous subscription service. Subscription Offsets will be issued after the conclusion of the applicable subscription period and after Raiven has received and reconciled relevant Allowances from participating suppliers.
(e) Form of Subscription Offset. Any offset determined by Raiven under the Program may be applied in one of the following forms, at the customer’s election:
(f) Subscription Offset Limitations. In no event shall the total offset provided to a customer under the Program exceed the total subscription fees paid by the customer to Raiven during the applicable twelve (12) month subscription period. Offsets may not be transferred, assigned, or applied to subscription periods other than the immediate renewal period unless otherwise approved by Raiven.
(g)Program Modifications. Raiven reserves the right, in its sole discretion, to modify, suspend, or terminate the Program, including eligibility requirements, supplier participation, allocation methodologies, or credit structures, at any time. Any Subscription Offsets already earned and calculated prior to such modification or termination will be honored in accordance with these Terms.
(h) No Representation of Savings. The Program is intended as a promotional opportunity to share a portion of supplier Allowances with participating customers. Raiven makes no representation or guarantees regarding the amount of any offset or that any offset will be earned during a subscription period.